Contending that the genetically modified (GM) corn in General Mills’ Kix Crispy Corn Puffs® and Honey Kix Crispy Corn Puffs® cereals renders their “All Natural Corn” representations false and misleading, a California resident has filed a putative class action against the company in state court. Lewis v. General Mills, Inc., No. BC472451 (Cal. Super. Ct., Los Angeles Cty., filed October 28, 2011). Citing the Cornucopia Institute’s “Cereal Crimes” report, and testing purportedly showing that Kix contains GM corn, the plaintiff seeks to certify a nationwide class of consumers who allegedly relied on the “All Natural” representations, as well as other company indicia of wholesomeness, to purchase products at a premium price and were denied the benefit of their bargain. According to the plaintiff, companies that produce GM crops note that that their genetic makeup has been “altered to exhibit traits that are not naturally theirs,” and the World Health Organization…
Category Archives 9th Circuit
A California resident has filed a putative nationwide class action against Austrian and British companies that sell Oxygizer®, a “designer water” product promoted as an athletic performance aid, alleging that increased oxygen content cannot deliver the benefits claimed. Ghazarian v. Oxy Beverages Handelsgelsellschaft mbH, No. 11-8860 (C.D. Cal., filed October 26, 2011). The companies purportedly promote the product with claims that (i) it aids rapid muscle recovery by increasing the level of oxygen in the body, (ii) the glass bottle eliminates or reduces oxygen loss, (iii) it is the only water with a proven positive effect on the body, (iv) the product is patented, (v) it transports oxygen in body cells to regenerate them, (vi) the water strengthens the immune system and improves cardiovascular and respiratory function, and (vii) it helps office workers who are deprived of oxygen in large cities. According to the plaintiff, each of these claims is…
California residents have filed a putative class action in a federal court against grocery chain Trader Joe’s Co., alleging that a number of its “All Natural” products contain synthetic or artificial ingredients and thus are mislabeled and falsely advertised. Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., filed October 24, 2011). According to the complaint, “The labeling of products as ‘All Natural’ carries implicit health benefits important to consumers—benefits that consumers are often willing to pay a premium for over comparable products that are not ‘All Natural.’ Trader Joe’s has cultivated and reinforced a corporate image that has catered to this ‘All Natural’ theme and has boldly emblazed this claim on each and every one of its foods identified above, despite the fact Trader Joe’s uses synthetic ingredients in the products identified above.” The listed products include cookies, biscuits, cheese, fruit jellies, and apple juice sold under the Trader…
A federal court in California has issued orders allowing certain claims to proceed in Lanham Act litigation brought by sugar producers against trade associations and companies that make high-fructose corn syrup (HFCS). W. Sugar Coop. v. Archer-Daniels-Midland Co., No. 11-3473 (C.D. Cal., orders entered October 21, 2011). The plaintiffs allege that an advertising campaign the defendants launched in 2008 to tell the public that “HFCS is corn sugar,” “HFCS is natural,” and “sugar is sugar” contains false representations about HFCS “that constitute false advertising under the Lanham Act and a violation of the California[] Unfair Business Practices Act.” The defendants filed a motion to dismiss contending that the plaintiffs had failed to state a claim on which relief can be granted. While the court agreed that the plaintiffs had failed to state a claim against individual trade association members, it found the pleadings sufficient to state a claim for false advertising…
General Nutrition Centers Inc. and the company that makes 2:1 Protein Bars® have settled class claims filed in California alleging that the companies misbranded four flavors in the product line by “allegedly overstat[ing] their protein content and understat[ing] their sugar and carbohydrate content.” Cagle v. Anti-Aging Essentials, Inc., No. 11-02940 (C.D. Cal., motion for preliminary approval of proposed settlement filed October 17, 2011). While the companies apparently reformulated the bars and labels before the lawsuit was filed, they have agreed to comply with federal labeling laws in the future and to provide three free protein bars to class members who have been identified through online purchase records or their use of customer loyalty cards. Consumers who can prove their purchases with receipts will receive free replacement bars under the proposed settlement, if the court approves it. Consumers without proof of purchase would be able to receive buy-one-get-one free coupons for…
The Center for Science in the Public Interest (CSPI) is representing a California woman who has sued General Mills, Inc. on behalf of a putative nationwide class of consumers who purchased the company’s Fruit Roll-Ups®, Fruit by the Foot® and Fruit Gushers® products, claiming that the company deceptively markets them as healthy and wholesome. Lam v. General Mills, Inc. No. 11-5056 (N.D. Cal., filed October 14, 2011). According to CSPI, “General Mills is basically dressing up a very cheap candy as if it were fruit and charging a premium for it.” Product labeling purportedly refers to the snacks as “fruit flavored,” “naturally flavored,” “good source of Vitamin C,” “low fat,” and “gluten free.” The complaint alleges that these claims are misleading because the snacks actually contain trans fat, added sugars, and artificial food dyes. The plaintiff also alleges that the products lack “significant amounts of real, natural fruit” and have no…
The U.S. Judicial Panel on Multidistrict Litigation (JPML) has consolidated six actions questioning the “100% Natural” claims for Wesson oil products before a multidistrict litigation (MDL) court in California. In re: Wesson Oil Mktg. & Sales Practices Litig., MDL No. 2291 (JPML, transfer order filed October 13, 2011). The defendant requested the transfer, and while the California, Florida and New Jersey plaintiffs supported consolidation, they disagreed on the transferee district. According to the court, centralization “in the Central District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” The court found, “All actions contain similar allegations against ConAgra and share factual questions regarding the labeling and marketing of Wesson oils as ‘100% Natural’ when the oils purportedly contain genetically modified plants or organisms. Little litigation activity has occurred in the actions, which were all filed within the past…
An environmental and public-health advocacy organization has filed a Proposition 65 lawsuit against numerous food and beverage producers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11597384 (Cal. Super. Ct., Alameda Cty., filed September 28, 2011). Alleging one count of violating Proposition 65, the plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of the law, as well as attorney’s fees and costs. According to the complaint, the plaintiff notified the companies about the alleged violation in 2010 and provided the required notice to the state attorney general, who is not apparently prosecuting an action involving this claim.
A woman who allegedly created a design for Knee Deep Brewing Co. to use on its beer tap handles has sued the company for breach of contract and copyright infringement after they could not apparently come to terms over a price for her design and the company began using a similar design on its product labels. Sylvers v. Knee Deep Brewing Co., LLC, No. 11-714 (D. Nev., filed October 4, 2011). The disputed design is purportedly being used on the company’s “Beautiful Blonde” Ale; it features a woman posing before a panorama of downtown Reno, Nevada, with mountains in the background. The plaintiff, who allegedly registered the “Girl Over Reno” design with the U.S. Copyright Office, seeks preliminary and permanent injunctive relief, compensatory damages and restitution, interest, costs, and attorney’s fees.
Alleging that a government contractor sprayed an herbicide on their property as part of transmission-line maintenance, the owners of a state-certified organic beef farm in Skagit County, Washington, have sued the U.S. government and the contractor for damages incurred by the contamination of their property. Benson v. United States, No. 11-1619 (W.D. Wash., filed September 28, 2011). According to the complaint, the plaintiffs have a contract with the government “with regards to all maintenance on the power lines and providing recovery of any resulting damages.” In 2008, the plaintiffs were allegedly notified that spraying would take place, and they spoke with a government representative explaining that their property could not be sprayed. They were allegedly assured that this would be noted in the paperwork and that no herbicide would be sprayed on their property. Despite the assurances and despite a “no spray” sign on the access gate to the plaintiffs’ property,…
