McDonald’s Corp. has reportedly responded to a San Francisco ban on giving away toys with its Happy Meals® by allowing parents to purchase the toys with a 10-cent charitable contribution when they buy a Happy Meal®. While the toy purchase is purportedly a separate transaction that complies with the new ordinance, it will still require a Happy Meal® purchase because toys cannot not be obtained by those who do not purchase the meal for their children. Previously, the toys could be purchased without buying a Happy Meal®. According to the company, the donations will help build a new Ronald McDonald House where parents of sick children at a University of California, San Francisco, hospital currently under construction will be able to stay. At least one public health advocate, evidently unhappy with the company’s action, was quoted as saying that McDonald’s “has developed a response to the law that allows them…
Category Archives 9th Circuit
A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.” A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did…
According to a news source, the company that makes the hazelnut spread Nutella®, which is advertised as part of a healthy breakfast for children, has reached a settlement in the class action certified by a federal court in California last month. In re Ferrero Litig., No. 11-205 (S.D. Cal., minute entry November 28, 2011). A docket notation reportedly indicates that the parties settled the claims during a November 28, 2011, mandatory settlement conference and will “submit a joint motion for preliminary approval of the class settlement no later than December 19, 2011.” Additional details about the court’s class certification order appear in Issue 418 of this Update. The plaintiffs had alleged that the product contains “dangerous levels of fat and sugar.” See BNA Product Safety & Liability Reporter, December 5, 2011.
According to a news source, Pom Wonderful LLC, which was seeking $18.1 million in lost sales from Ocean Spray Cranberries Inc. for falsely selling a pomegranate juice product with just trace amounts of pomegranate juice, lost its case following less than two hours’ deliberation by a federal jury. Pom Wonderful LLC V. Ocean Spray Cranberries Inc., No. 09-00565 (C.D. Cal., verdict reached December 6, 2011). The trial apparently became a battle of experts who cited conflicting statistics on whether Ocean Spray misled consumers about the quantity of pomegranate juice in its Cranberry & Pomegranate® juice blend, which evidently contains mostly grape and apple juice. Pom Wonderful sought to show that Ocean Spray took advantage of Pom’s extensive medical research into the purported health benefits of pomegranate juice. The company has reportedly lost two other consumer deception cases filed against Welch Foods Inc. and Tropicana Products Inc. See The National Law…
A federal judge in California has reportedly dismissed a putative class action against the manufacturer of melatonin-laced brownies marketed as a relaxation and sleep aid. According to media sources, the plaintiff alleged that HBB LLC failed to disclose the potential effects of its Lazy Larry® or Lazy Cakes® baked goods, including “extreme fatigue, exhaustion and slurred speech.” The products have also come under fire from lawmakers and the Food and Drug Administration, which in August 2011 warned the company that the brownies were adulterated under federal law. Despite the ongoing debate over whether the brownies are conventional food or a dietary supplement, U.S. District Judge Manuel Real concluded that the product packaging adequately displayed its contents. “It is undisputed that the packaging on the product accurately disclosed the quantity of melatonin in each serving as well as the relevant serving size [and] that the product contained a disclaimer of the…
A federal court in California has dismissed without prejudice a proposed class action alleging that ConAgra Foods misrepresented its Wesson cooking oils as “100% Natural” when they contain genetically modified (GM) ingredients. Briseño v. ConAgra Foods, Inc., No. 11 05379 (C.D. Cal., order entered June 28, 2011). Seeking to certify a nationwide class of consumers, the plaintiff sought declaratory and injunctive relief, compensatory damages, restitution, disgorgement, attorney’s fees, and costs, as well as an order requiring ConAgra to disclose the presence of GM ingredients and/or remove the “100% Natural” marketing claims from its products. Additional details about the complaint appear in Issue 400 of this Update. Ruling that the complaint failed to satisfy procedural rule requirements, the court found that the plaintiff’s general allegations “about when he purchased the product, where he purchased it, and how he was made aware of ConAgra’s representations about [sic] do not afford ConAgra adequate opportunity…
Seeking to certify a nationwide class of consumers, a California resident has filed consumer fraud claims against a company that makes numerous breakfast-, dessert- and bread-mix products promoted as “All Natural,” while containing purported synthetic ingredients, such as ascorbic acid, disodium phosphate, potassium carbonate, and sodium acid pyrophosphate. Larsen v. King Arthur Flour Co., Inc., No. 11-5495 (N.D. Cal., filed November 14, 2011). The complaint focuses on 64 specific products carrying “All Natural” labels and identifies which alleged synthetic ingredient is contained in each. The plaintiff alleges that she “did not receive the ‘All Natural’ baking mixes she bargained for . . . and has lost money as a result in the form of paying a premium for King Arthur’s Mixes because they were purportedly all natural rather than paying the lesser amount for non-natural alternatives.” The complaint, which also seeks to certify a sub-class of California consumers, alleges common…
A federal court in California has entered an order certifying a class in consolidated lawsuits alleging that the company which produces Nutella® falsely advertises its product as healthy and beneficial to children despite making the hazelnut spread with “dangerous levels of fat and sugar.” In re Ferrero Litig., No. 11-205 (S.D. Cal., decided November 15, 2011). The court limited the class to California consumers, agreeing with the defendant that California law could not be applied to the claims of non-California class members who neither saw the advertisements nor purchased the product in the state. Because the defendant is a Delaware corporation that does business from its New Jersey headquarters and the product is made in Canada, the non-California class members would also have been unable to show that their claims arose out of conduct that occurred in California. The court refused to certify an 11-year class, noting that nationwide TV ads for…
A federal court in California has entered an order granting the motion of conventional alfalfa farmers and environmental groups for an award of attorney’s fees and costs in litigation that successfully challenged a U.S. Department of Agriculture, Animal and Plant Health Inspection Service (APHIS) decision to de-regulate genetically engineered (GE) alfalfa without conducting an environmental impact statement under the National Environmental Policy Act (NEPA). Geertson Seed Farms v. Johanns, No. 06-01075 (N.D. Cal., decided November 8, 2011). While the U.S. Supreme Court ultimately reversed lower court rulings in the case as to the scope of relief granted, the core determination that APHIS had violated NEPA survived the appeal. Due to the “limited” nature of the plaintiffs’ success, the court imposed a 10-percent reduction on their request and ordered a total award of $1.6 million. The defendant had argued that the plaintiffs were entitled to $829,422 only.
Following oral argument before the U.S. Supreme Court on the validity of a California law that prohibits slaughterhouses from receiving, processing or selling nonambulatory animals, court watchers are predicting that the law will not survive the National Meat Association’s preemption challenge. Nat’l Meat Ass’n v. Harris, No. 10-224 (U.S., argued November 9, 2011). The Ninth Circuit Court of Appeals upheld the law, finding that the states may regulate “what kinds of animals may be slaughtered,” despite express preemption language in the Federal Meat Inspection Act. Additional information about the Ninth Circuit’s ruling appears in Issue 344 of this Update. According to news sources, the justices did not appear to accept the fine distinction adopted by the lower court. Under the federal law, federal inspectors are authorized to decide what to do with animals that cannot walk when they reach the slaughterhouse; in some cases, they determine that animals may be…
