A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 (N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied. Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If…
Category Archives 9th Circuit
A federal judge in California has granted class certification in a suit alleging that Diamond Foods, Inc. misbranded its shelled walnut products and misled consumers by using “express and implied statements about the positive effects of omega-3 fatty acid consumption on health.” Zeisel v. Diamond Foods, Inc., N0. 10-01192 (N.D. Cal., decided June 7, 2011). The labels at issue apparently featured a heart symbol banner with the phrase “Omega 3 2.5 g per serving” and a structural claim about the omega-3 in walnuts, as well as a qualified health claim approved by the Food and Drug Administration (FDA). After FDA issued a February 2010 warning letter about these so-called combination claims, a consumer filed a complaint alleging that Diamond used language not authorized by FDA and that its products “did not provide the health benefits that were claimed on the package labels.” Plaintiff then moved to certify a class of all…
A federal court in California has reportedly dismissed without prejudice putative class claims filed against General Mills Inc. alleging that the company falsely conveyed to consumers that its Total Blueberry Pomegranate® cereal product contained real fruit. Dvora v. Gen. Mills Inc., No. 11-1074 (C.D. Cal., dismissed May 16, 2011). According to a news source, the court determined that the plaintiff’s state-law claims were preempted by federal product-labeling laws that allow a manufacturer to use a fruit’s name and image to describe a flavor even if the product contains no fruit. The claims were apparently based on allegations that the product was falsely labeled “naturally and artificially flavored” and the packaging was misleading. The court disagreed, saying, “If you look at the ingredients table, blueberry and pomegranate aren’t there. So I don’t understand how a reasonable consumer is somehow tricked into thinking it contains blueberry and pomegranate.” The court also said…
The Metzger Law Group has filed a lawsuit under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) on behalf of the Council for Education and Research on Toxics (CERT), seeking an order to require coffee makers and retailers to warn consumers that coffee contains acrylamide, a chemical known to the state to cause cancer. CERT v. Brad Berry Co., Ltd., No. BC461182 (Cal. Super. Ct., Los Angeles Cty., filed May 9, 2011). The defendants include manufacturing companies, coffee shops and major food retailers. Raphael Metzger and CERT have filed a number of Prop. 65 lawsuits, including claims against fast-food restaurants, for failing to warn consumers about the acrylamide in fried and baked potatoes. Acrylamide, formed when certain foods are roasted, baked or exposed to high-temperature cooking processes other than boiling or steaming, has been listed as a carcinogenic chemical in California since 1990, but was not discovered in…
A federal court in California has denied without prejudice the motion of Ferrero U.S.A., Inc. to transfer a consolidated consumer-fraud class action involving its Nutella® spread to a New Jersey district court. In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided May 11, 2011). According to the court, the convenience of the parties and witnesses and the interests of justice would best be served by allowing the plaintiffs to remain in their chosen jurisdiction. The court noted that similar litigation is pending in New Jersey, but that case was filed after the California lawsuits, “likely giv[ing] the cases in this district priority.” Additional details about the case can be found in Issue 380 of this Update.
A federal jury agreed with POM Wonderful LLC that Welch Foods, Inc. developed intentionally confusing and misleading marketing and labeling for its White Grape Pomegranate juice product to take advantage of the market POM created for pomegranate juice, but determined that POM did not lose sales because of Welch’s conduct. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., verdict reached September 13, 2010). More details about the case appear in Issue 290 of this Update. POM has reportedly asked the Ninth Circuit Court of Appeals to review the verdict, claiming that the lower court’s decision to try the case in two phases led the company to refrain from introducing evidence about lost sales during the first phase, which focused on liability. According to a news source, the company requested before the verdict that the court not instruct the jury to decide whether POM had lost sales, but…
Taco Bell has requested that the Ninth Circuit Court of Appeals review a district court determination that three insurance companies are not required to provide coverage under commercial liability policies for economic loss allegedly arising from decreased patronage in the wake of a 2006 E. coli outbreak. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Ready Pac Foods, Inc., No. 09-3220 (C.D. Cal., appeal filed May 11, 2011). The district court reportedly issued an order granting a request for certification of the economic loss claim and stayed its adjudication of other unresolved matters to allow Taco Bell to take an interlocutory appeal to the Ninth Circuit. According to the lower court, “The lost patronage claim presents a legal issue that is unique and distinct from the other types of loss for which Taco Bell seeks a declaration of coverage . . . such as claims for bodily injury, claims for…
Contending that Diamond Foods, Inc. has defended its decision to place “heart-healthy” claims on its packaged walnuts on the advice of counsel, and removed them after a Food and Drug Administration (FDA) warning, also on the advice of counsel, the named plaintiff in a putative class action alleging consumer-fraud against the company is seeking the production of attorney-client communications. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed April 26, 2011). Details about a court order denying the defendant’s motion to dismiss appear in Issue 363 of this Update. The plaintiff points to instances in responses to interrogatories and deposition questions where the company defended its decision to link the omega-3 fatty acids in walnuts to heart health as a good faith bona fide error and indicated that decisions about the labeling were made with legal counsel’s approval. Yet, the company has refused to produce any attorney-client communications on…
A federal court in California recently granted a motion for final approval of a class action settlement in litigation involving allegations that Kellogg Co. fraudulently claimed that its Frosted Mini-Wheats® cereal “was clinically shown to improve children’s attentiveness by nearly 20%.” Dennis v. Kellogg Co., No. 09-01786 (S.D. Cal., decided April 5, 2011). Additional information about the case appears in Issue 368 of this Update. Two class members objected to the settlement, challenging the cy pres relief, which will provide money remaining from the $2.75 million settlement fund to “appropriate charities,” as well as donated food items valued at $5.5 million to charities feeding the indigent. According to the objectors, class counsel owes a fiduciary duty to the class and “[s]omewhere along the way, Class Counsel lost sight of that duty and became an advocate for some unnamed third party charity.” The objectors also argued that the “food donation allows…
Clos LaChance Wines has filed a complaint in a California federal court seeking a declaration that “Mommy” is not a protected trademark when used on a wine label and that the company’s domestic wine products, “MommyJuice White Wine” and “MommyJuice Red Wine,” do not infringe defendant’s “Mommy’s Time Out®” imported wines. Clos LaChance Wines, LLC v. Selective Wine Estates, Inc., No. 11-1848 (N.D. Cal., filed April 18, 2011). Clos LaChance apparently began using its label in August 2010; it includes an image of a woman with four arms juggling a computer, house, cell phone, and teddy bear. Selective Wines, whose label contains an image of an empty chair facing a corner alongside a small table with a bottle and wine glass, purportedly sent a demand letter to Clos LaChance accusing it of infringing Selective’s trademark and demanding that Clos LaChance cease and desist from using the name “MommyJuice” in connection with…
