The Center for Science in the Public Interest (CSPI) has filed a putative class action on behalf of two named California residents against General Mills alleging that its use of “All Natural,” “Natural,” and “100% Natural” product representations on its Nature Valley® food products is deceptive because they contain high-fructose corn syrup (HFCS), high-maltose corn syrup, and maltodextrin and rice maltodextrin. Janney v. General Mills, No. 12-3919 (N.D. Cal., filed July 26, 2012). According to the complaint, these ingredients are not “minimally processed,” yet the defendant purportedly “takes wrongful advantage of consumers’ strong preference for foods made entirely of natural ingredients” with words and images in its marketing and on product labels evocative of the outdoors and nature. While one of the named plaintiffs purchased “natural” food for a daughter with type 1 diabetes and the other sought an all-natural diet for a daughter with ADHD, they do not allege personal…
Category Archives 9th Circuit
A federal court in Idaho has denied all pending motions to dismiss in litigation brought by direct and indirect potato purchasers who allege that the defendants violated antitrust laws by agreeing to reduce the supply of potatoes in the United States to increase their price. In re Fresh & Process Potatoes Antitrust Litig., MDL No. 10-2186 (D. Idaho, filed July 27, 2012). The plaintiffs contend that the defendants formed cooperatives which agreed to limit crop acreage and paid farmers to destroy existing potatoes or refrain from growing additional potatoes. Assessing the allegations in the plaintiffs’ amended complaint, the court determined that they met the plausibility pleading standard required under the U.S. Supreme Court’s Twombly and Iqbal rulings.
While a federal court in California has dismissed warranty claims filed under federal law against an ice cream manufacturer sued for allegedly misleading consumers by labeling its products with the phrases “All Natural Flavors” and “All Natural Ice Cream,” most of the plaintiffs’ state law-based claims will proceed. Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910; Rutledge-Muhs v. Dreyer’s Grand Ice Cream, Inc., No. 11-3164 (N.D. Cal., order entered July 20, 2012). The plaintiffs allege that Dreyer’s and Edy’s ice cream products should not bear labels stating “All Natural Flavors” because they contain between one and five artificial and/or synthetic ingredients, and the company’s Haagen-Dazs ice cream products should not bear labels stating “All Natural Ice Cream” because they contain cocoa processed using a synthetic and/or artificial alkalizing agent. They allege violation of written warranty under the Magnuson-Moss Warranty Act; common law fraud; unlawful, unfair and fraudulent business practices and false…
Seeking to represent everyone who purchased a mahi mahi dish in Sharky’s Woodfired Mexican Grills throughout California, four Los Angeles County residents have filed suit alleging that the menu items do not contain mahi mahi fish as advertised. Chenier v. Sharky’s Franchise Group, LLC, No. 30-2012-00587784 (Cal. Super. Ct., filed July 31, 2012). The plaintiffs claim that they would not have purchased the products had they known the products were not made with mahi mahi. They allege violations of the California Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, negligent and intentional misrepresentation, and breach of express warranty, and seek disgorgement, restitution, public disclosure, injunctive relief, compensatory and punitive damages, attorney’s fees, and costs.
According to a news source, a Los Angeles Superior Court has dismissed a putative class action seeking damages against One World Enterprises LLC for allegedly misleading consumers about the nutritional value and hydrating properties of its coconut water product. Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., dismissed on July 18, 2012). The court apparently agreed with the defendant that part of the plaintiff’s case involved a product representation that was simply “puffery” and stated that marketing a product’s “superior” hydrating power “is not actionable because consumers are used to hearing advertisers make general boasts and were not born yesterday.” The court dismissed the case without prejudice to give the plaintiff an opportunity to replead state-based fraud and false advertising claims about the product’s allegedly false nutritional label. According to the court, the plaintiff “correctly notes federal law will not preempt his claim if the label…
Organizations representing the interests of Asian Americans have filed suit in a federal court in California against the governor and agency officials seeking a declaration that legislation enacted in October 2011 banning the “possession, sale, offer for sale, distribution, or trade of shark fins” violates their members’ equal protection rights, unlawfully interferes with interstate commerce and preempts federal law, and deprives them of rights, privileges and immunities under the U.S. Constitution. Chinatown Neighborhood Assn. v. Brown, No. 12-3759 (N.D. Cal., filed July 18, 2012). According to the complaint, “Shark fins are used within the Chinese American community to make the traditional dish, shark fin soup. Shark fin soup is a cultural delicacy with origins dating back to the Ming Dynasty (1368-1644 A.D.). It is a ceremonial centerpiece of traditional Chinese banquets as well as celebrations of weddings and birthdays of one’s elders. Shark fin soup serves as a traditional symbol…
Restaurant trade organizations, an Oregon restaurant and one of its employees, a server, have filed a complaint for declaratory and injunctive relief against the U.S. Department of Labor (DOL), alleging that its interpretation of the Fair Labor Standards Act, forbidding restaurants from distributing a share of tips to non-tipped employees, regardless of whether the restaurants use the tips as a credit toward paying their employees minimum wage, conflicts with a Ninth Circuit decision and will force the restaurants to incur significant costs or subject them to litigation. Or. Restaurant & Lodging Ass’n v. Solis, No. 12-01261 (D. Or., filed July 12, 2012). According to the Ninth Circuit ruling, restaurants can require that tips be shared with back-of-house and other non-tipped restaurant employees where the wait staff are paid at least full minimum wage and the restaurants do not take a tip credit. Cumby v. Woody Woo, Inc., No. 08-35718 (9th Cir.…
A federal court in California has denied the ex parte request of foie gras producers to temporarily halt California’s enforcement of a ban on the sale of any product that is the result of force-feeding a bird for the purpose of enlarging its liver beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered July 18, 2012). Additional information about the challenge to California’s foie gras ban appears in Issue 446 of this Update. The court also established a briefing schedule on the plaintiffs’ motion for preliminary injunction that will culminate in an August 29, 2012, hearing. Meanwhile, California restaurateurs have reportedly found ways around the state’s ban. A restaurant on a former military base in San Francisco, now owned by the National Park Service, apparently began offering the dish on its menu, claiming that its location on federal land makes it…
The Ninth Circuit Court of Appeals has found the proposed cy pres distribution inappropriate and unacceptably vague and the attorney’s fees unreasonable in a settlement of class claims that the Kellogg Co. violated consumer protection laws by advertising its Frosted Mini-Wheats® cereal as a product that was clinically shown to improve children’s attentiveness by nearly 20 percent. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided July 13, 2012). Additional information about the case appears in Issues 368 and 392 of this Update. The company’s settlement of related false-advertising charges filed by the Federal Trade Commission is discussed in Issue 301 of this Update. Under the agreement, class members could recover up to a maximum of $15, and any remaining funds would be donated to “charities chosen by the parties and approved by the Court pursuant to the cy pres doctrine.” According to the court, about $800,000 had been…
Responding to a question certified by a federal district court, a divided Montana Supreme Court has said that obesity which is not the symptom of a physiological condition may be a “physical or mental impairment” as the terms are used in the Montana Human Rights Act. BNSF Ry. Co. v. Feit, No. OP 11-0463 (Mont., decided July 6, 2012). The issue arose after an extremely obese applicant for a conductor-trainee position was told he would not be considered for the position unless he lost 10 percent of his body weight or completed certain medical examinations, including a $1,800 sleep study, at his own expense. The applicant successfully pursued an administrative remedy through the state department of labor and industry alleging that the railway defendant had illegally discriminated against him because of perceived disability. He was awarded damages for lost wages and benefits, prejudgment interest and emotional distress. On appeal, the…
