A federal court in California has dismissed as preempted state-law claims that Smart Balance falsely labeled and advertised its Nucoa® margarine product; the court also denied the plaintiff’s motion to certify a class. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered March 14, 2011). Additional information about the complaint, which has twice been amended after previous rulings on motions to dismiss, appears in Issue 359 of this Update. The defendant argued in its response to the plaintiff’s motion for class certification that the claims were preempted by federal law and thus could not be certified. The plaintiff argued that the defendant had waived this defense by not asserting it in its previous motions to dismiss. According to the court, the defendant did not waive the defense, because it had been preserved in the company’s answer and because the company “is entitled to raise the defense any time prior…
Category Archives 9th Circuit
A California resident has filed a putative class action against the companies that make, distribute and sell Four Loko®, a 6- to 12-percent alcoholic beverage with caffeine. Richardson v. Phusion Projects, LLC, No. 11-0456 (S.D. Cal., filed March 4, 2011). The plaintiff alleges that she purchased Four Loko Fruit Punch at $3 per can based on its advertising and labeling, which purportedly failed to warn her “of the particular dangers of drinking a caffeinated beverage with high alcoholic content.” She alleges that she was misled into purchasing a dangerous beverage and claims “injury in fact and a loss of money or property in that she has been deprived of the benefit of her bargain and has spent money purchasing Four Loko at a price premium when it actually had significantly less value than was reflected in the price she paid for it.” The complaint alleges unfair competition, false advertising, violation…
A federal court in California has denied a motion for summary judgment filed by the company that makes YoPlus® probiotic yogurt and certified a class of consumers alleging that it misled them in its product marketing. Johnson v. General Mills, Inc., No. 10-00061 (C.D. Cal., summary judgment denied March 3, 2011; class certification granted March 7). The court disagreed with the company’s attempt to characterize its product statements as “either true or . . . untestable and subjective statements of opinion” or “mere puffing.” According to the court, General Mills sought to “isolate each particular statement or image and divorce it from its full context.” Rather, the court determined that “properly considered in context, General Mills successfully communicated a ‘common message that eating Yo-Plus aids in the promotion of digestive health in ways that eating normal yogurt does not.’” The court reportedly granted class certification from the bench. See Law360, March…
A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
The Ninth Circuit Court of Appeals has reversed a district court ruling that would have required those who had planted genetically engineered (GE) sugar beet seedlings to destroy the crop. Ctr. for Food Safety v. Vilsack, Nos. 10-17719, -17722 (9th Cir., decided February 25, 2011). The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) had issued permits allowing the GE sugar beet seedlings to be planted in select, remote areas and imposing conditions prohibiting flowering or pollination before the permits expired on February 28, 2011. The plaintiffs challenged those permits because they were issued before APHIS had completed an environmental impact statement, which was required by a previous court order, and the district court concluded that they were likely to prevail on the merits. Additional details about the case appear in Issues 366 and 374 of this Update. While the Ninth Circuit agreed with the lower court that…
The Center for Food Safety has returned to a federal court in California charging the U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) with violations of the law in partially deregulating genetically engineered (GE) sugar beets. Center for Food Safety v. Vilsack, No. 11-0831 (N.D. Cal., filed February 23, 2011). Details about the agency’s action are included in Issue 381 of this Update. Seeking declaratory and injunctive relief, the group and several other organizations concerned about the safety of GE crops and their alleged potential to contaminate conventional and organic crops, challenge the February 4, 2011, APHIS decision to approve an environmental assessment prepared in connection with the agency’s decision to issue an interim partial deregulation of Roundup Ready® sugar beets. According to the complaint, “The partial deregulation decision purports to allow planting and use of [GE sugar beets] pending the completion by APHIS of an…
A diabetic man has reportedly filed a lawsuit in Los Angeles County Superior Court, seeking at least $4,000 in mental anguish damages from a Studio City sushi restaurant that requires those patrons paying an all-you-can-eat price to eat all of the food served and not just the fish. Martin v. A Ca-Shi Sushi, No. __ (Cal. Super. Ct.). David Martin alleges that restaurant owner Jay Oh is discriminating against diabetics by requiring them to eat the rice along with the sashimi, which Martin picked out and consumed, leaving the rice behind. According to a news source, Oh offered to prepare two orders of sashimi alone for Martin at a cost of $3 less than the all-you-can-eat sushi deal, but Martin refused. Instead, he filed a lawsuit and said he would be willing to settle for $6,000. Oh is reportedly going to fight the litigation even if his legal costs exceed…
Galeos, LLC has been sued in a federal court in California for misrepresenting the nutritional content of its miso-based salad dressings, purportedly advertised on the weight-loss TV show “The Biggest Loser” and promoted as beneficial to health. Healey v. Galeos, LLC, No. 11-00240 (C.D. Cal., filed February 11, 2011). Details about a previous suit with similar allegations filed in the same court appear in Issue 376 of this Update. The plaintiff contends that independent laboratory testing has shown that the label for the company’s Miso Caesar Dressing® understates the calories by 430 percent, the fat by 550 percent and the sodium content by 350 percent. Seeking to certify a nationwide class of consumers, the plaintiff alleges violations of California’s unfair competition and false advertising laws, breach of express warranty and negligent misrepresentation. She also seeks an injunction requiring the publication of corrective nutritional values, compensatory and punitive damages, as well…
The parties litigating whether Welch Foods, Inc. falsely labeled its “100% Juice White Grape Pomegranate flavored 3 juice blend” beverage have filed a stipulation of settlement in a California federal court. Burcham v. Welch Foods, Inc., Nos. 09-05946 and 10-01427 (C.D. Cal., filed February 7, 2011). Under the agreement, a nationwide class of consumers would release their claims in return for refunds and coupons for replacement products, depending on whether they can prove that they purchased the product. The company would place coupons for free juice products in Sunday newspapers throughout the United States at a total value of $30 million. While Welch’s continues to maintain that the labeling claims are preempted by federal law and that the company has complied in all respects with federal law, it also claims that it lost money selling the white grape pomegranate juice. Acknowledging the difficulties in locating class members, Welch’s has also…
Montana and California residents have sued Safeway, Inc. in a California state court on behalf of a putative nationwide class of customers that the company allegedly failed to notify about tainted food recalls despite the ability to contact purchasers of contaminated products through its “club card” loyal customer program. Hensley-Maclean v. Safeway, Inc., No. __ (Cal. Super. Ct., Alameda Cty., filed February 2, 2011). Backed by the Center for Science in the Public Interest (CSPI), the plaintiffs allege that they purchased Salmonella-tainted peanut butter and egg products from the grocery and learned only by chance on the news or from neighbors that the products were subject to a recall. According to the complaint, the company’s club card program gives the grocery contact information for participating customers and a history of the purchases they have made. The plaintiffs allege, “Many of Safeway’s competitors already use their own customer data to notify their…
