A federal judge in California has notified the parties to a consumer-fraud action against the company that makes Mission® tortilla chips of her inclination to stay the litigation for six months and refer to the Food and Drug Administration (FDA) the question “whether products containing GMO [genetically modified organisms] or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’” Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., notice filed June 7, 2013). The plaintiffs have opposed the tentative stay order, arguing that a prompt regulatory determination is unlikely given FDA’s past inaction on the matter. They reportedly cited a recent Florida decision denying a soup company’s motion to dismiss similar litigation on preemption grounds because FDA does not regulate “Natural” or “All Natural” food labeling claims. The court, however, cited a Ninth Circuit ruling deferring to FDA’s regulatory authority so that the agency’s “considered judgments” would not be undermined…
Category Archives 9th Circuit
A federal court in California has denied the class certification motion filed by a woman who sought to represent anyone in the state who had purchased products in entire beverage lines produced by the defendant, because she had purchased just five specific products and thus her labeling and misbranding claims were not typical of those of the putative class. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., decided June 10, 2013). The amended complaint alleged that the company’s juice and drink products were unlawfully labeled “No Sugar Added” or had improper nutrient claims or false representations that the products were “free from artificial colors, flavors or preservatives.” While the plaintiff had purchased five beverages, including a Diet Sparkling Pomegranate Blueberry drink, she sought to certify a class of purchasers of entire product lines, such as 100% juice and Sparkling. According to the court, the plaintiff “has not met her…
A unanimous U.S. Supreme Court has determined that the Ninth Circuit erred by failing to consider the unconstitutional takings defense raised by raisin growers who were subject to penalties and assessments for failure to pay assessments and set aside reserve-tonnage raisins under a Depression-era program intended to stabilize prices for agricultural commodities by limiting their quantity in the domestic competitive market. Horne v. USDA, No. 12-123 (U.S., decided June 10, 2013). Pursuant to the Tucker Act, claims “for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” The Court found that the Agricultural Marketing Agreement Act (AMAA) of 1937 displaces Tucker Act jurisdiction and, because the raisin growers had no alternative remedy, “their takings claim was not ‘premature’ when presented to the Ninth Circuit.” The Court…
A federal court in California has reportedly determined that a named plaintiff in a putative consumer-fraud class action may pursue claims pertaining to the defendant’s green tea products but not its black teas. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered May 31, 2013). The plaintiff apparently alleges that the defendant made misleading statements in press releases and on its website about the presence of antioxidants in its tea products, including both green and black teas. Because he did not purchase the black teas, the court ruled that he lacked standing to represent consumers who did purchase them. The court also reportedly dismissed the plaintiff’s unjust enrichment claim but refused to dismiss most of his other allegations finding them sufficiently pleaded. See Bloomberg BNA Product Safety & Liability Reporter, June 4, 2013.
Class representatives in litigation against Papa John’s International have filed an unopposed motion for preliminary approval of a class action settlement in a case involving claims that the company’s franchisees sent unlawful commercial text messages through OnTime4U to some 220,000 individuals without their express consent. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., filed May 17, 2013). Details about the court’s grant of class certification appear in Issue 463 of this Update. Under the proposed agreement, class members who are provided notice will automatically receive a merchandise certificate for a free Papa John’s pizza—a $13 retail value with a collective value of $2.86 million. Class members who submit claims and whose phone numbers are verified will also receive $50 each at an aggregate value of $11 million. Attorney’s fees and costs will add $2.45 million to the settlement fund, and $25,000 in incentives for the named plaintiffs will…
A federal court in California has granted in part and denied in part the motion to dismiss filed by Twinings North America, Inc. to the second amended putative class complaint filed by a woman who alleged that she paid a premium for the company’s green, black, white, and red teas relying on their purportedly misleading label—“a natural source of antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered May 23, 2013). The company sought to dismiss claims relating to products the plaintiff did not purchase, labeling the plaintiff did not see or advertising upon which the plaintiff did not rely. According to the court, as long as the “not purchased products” are nearly identical, a plaintiff may bring claims on behalf of others related to those products. Here, “Because the claims for 51 of the varieties of tea are based upon the exact same label describing…
The Ninth Circuit Court of Appeals has upheld a lower court ruling affirming the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) decision that genetically modified (GM) alfalfa is not a “plant pest” and thus that it lacked authority to stop its deregulation or to consult with the Fish and Wildlife Service regarding potential environmental impacts. Ctr. for Food Safety v. Vilsack, No. 12-15052 (9th Cir., decided May 17, 2013). The Center for Food Safety, an organization dedicated to environmental advocacy, has announced its determination to appeal the ruling and to pursue other legal options to stop the planting and cultivation of GM alfalfa. The gist of the Ninth Circuit’s ruling is that while the plaintiffs’ environmental and economic concerns may be valid, they have no bearing, under the current statutory scheme, on APHIS’s authority vis-à-vis GM crops. The court’s opinion methodically explains how GM alfalfa is created…
The plaintiffs in putative class litigation alleging inaccurate wage statements and denial of required meal breaks have filed a motion for preliminary approval of a class action settlement brought against Starbucks in 2008. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., W. Div., motion filed May 10, 2013). Without admitting liability, the company has apparently agreed to pay $3 million to resolve the claims of California Starbucks employees who fall into one or two subclasses: (i) the “Meal Break Settlement Subclass,” including “all persons employed by Starbucks within the state of California in the job categories of café attendant, barista, or shift supervisor during the period from December 2, 2004, to January 31, 2013”; and (ii) the “Wage Statement Settlement Subclass,” including “all persons employed by Starbucks in the state of California in the job categories of café attendant, barista, shift supervisor, assistant store manager, or store manager during the period…
A federal court in California has granted in part and denied in part the motion to dismiss filed by General Mills in litigation alleging that certain of its Nature Valley® products are deceptively labeled and advertised as “natural” because they contain sweeteners, such as high fructose corn syrup (HFCS), high-maltose corn syrup or maltodextrin and rice maltodextrin, which are purportedly “highly processed” and therefore not “natural.” Janney v. General Mills, No. 12-3919 (N.D. Cal., filed May 10, 2013). The plaintiffs are represented by Center for Science in the Public Interest attorney Stephen Gardner. The court disagreed with General Mills that the primary jurisdiction doctrine barred the claims, finding that the Food and Drug Administration “has signaled a relative lack of interest in devoting its limited resources to what it evidently considers a minor issue, or in establishing some ‘uniformity in administration’ with regard to the use of ‘natural’ in food…
A federal court in New York has amended the preliminary injunction entered against Kangadis Food Inc., doing business as The Gourmet Factory, originally requiring that the company send stickers to affix to all products sold as “100% Pure Olive Oil” and provided to wholesalers and retailers before March 1, 2013, because those products were actually made from Pomace, a processed oil made from olive pits, skins and pulp. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (S.D.N.Y., order entered May 7, 2013). Additional information about the earlier injunction appears in Issue 482 of this Update. The stickers were intended to inform consumers that the products were not “100% Pure Olive Oil.” The parties sought reconsideration after Kangadis indicated that it would prefer to recall its products from wholesalers and replace them with tins and bottles that do not contain Pomace. The plaintiff trade association agreed to allow…
