A federal court in California has decided to stop all new planting of genetically modified (GM) sugar beets in light of its September 2009 ruling that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) violated environmental law when it deregulated the crop without conducting an appropriate environmental assessment. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided August 13, 2010). Additional information about the court’s prior ruling appears in Issue 320 of this Update. While the court granted the plaintiffs’ request to vacate APHIS’s deregulation decision, it denied their motion for a permanent injunction. The court determined that vacatur was justified because APHIS’s errors were serious. “Moreover,” the court observed, “APHIS’s apparent position that it is merely a matter of time before they reinstate the same deregulation decision, or a modified version of this decision, and thus apparent perception that conducting the requisite comprehensive…
Category Archives 9th Circuit
The Ninth Circuit Court of Appeals has determined that an agreement among grocery chains in Southern California to share profits during an anticipated labor strike was anticompetitive in violation of the Sherman Act and rejected defendants’ argument that the violation could be excused because the agreement was designed to be used as an economic weapon in a labor dispute. California v. Safeway, Inc., Nos. 08 55671, 08-55708 (9th Cir., decided August 17, 2010). According to the court, despite the limited duration of the agreement and the fact that the groceries involved constituted, at most, 70 percent of the market, the agreement was anticompetitive because it removed all incentive to compete by providing lower prices or better service to consumers. The court disagreed that the defendants needed the pact to effectively bargain with striking employees. In this regard, the court stated, “Defendants claim no purpose for their agreement beyond strengthening their hands…
A California appellate court has reversed a summary judgment order that terminated litigation involving claims that chain restaurants violated Proposition 65 (Prop. 65) by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. B218089 (Cal. Ct. App., decided August 12, 2010). The carcinogens at issue are polycyclic aromatic hydrocarbons and PhIP (2-amino-1-methyl-6-phenylimidazol[4,5-b]pyridine). The trial court had dismissed the claims in late 2008 finding that the proposed warnings, which mentioned “well cooked,” “thoroughly cooked” and “grilled” chicken, were barred by conflict preemption because they would frustrate the U.S. Department of Agriculture’s (USDA’s) “longstanding policy of promoting the safe cooking of chicken” under the federal Poultry Products Inspection Act (PPIA). The court agreed with the defendants that the warnings would have frightened consumers from properly cooking chicken. The trial court dismissed the claims again in June 2009…
Alleging that no scientific evidence supports Wm. Wrigley Jr. Co.’s claim that the cardamom in its Eclipse® Breeze chewing gum “neutralize[s] the toughest breath odors,” a California resident has filed consumer fraud claims against the company in a federal court on behalf of a nationwide class of consumers. Sityar v. Wm. Wrigley Jr. Co., No. 10-5965 (C.D. Cal., filed August 10, 2010). The complaint alleges that he was misled by the company’s claims and “has spent money purchasing the Product at a price premium when the Product actually had less value than was reflected in that price he paid for the Product.” Seeking restitution, disgorgement, declaratory and injunctive relief, a corrective advertising campaign, costs, and attorney’s fees, the plaintiff alleges violations of California unfair competition and false advertising laws, breach of express warranty and violation of California’s Consumer Legal Remedies Act. The plaintiff alleges that the only evidence of “medicinal properties”…
Dr. David Egilman, who was excluded from testifying as an expert witness in the case of a person who claimed the fumes from microwave popcorn caused his lung disease, has reportedly filed a non-party appeal from the decision finding his testimony unreliable. More details about the case and the court ruling appear in Issue 356 of this Update. A federal district court determined in Newkirk v. ConAgra Foods, Inc. that Egilman lacked any scientifically sound basis for attempting to extrapolate workplace exposures to the diacetyl used in popcorn and other baked goods to exposures in the home. Workplace exposures, which have been extensively studied, have linked exposure to the butter-flavoring chemical to bronchiolitis obliterans, a debilitating lung condition often referred to as “popcorn lung.” Egilman, according to a news source, purportedly testified in 2005 in pharmaceutical litigation that he had earned between $2 million and $2.5 million over the previous…
Seeking to represent a statewide class of all those who purchased extra virgin olive oil during a four-year period, one of Bravo TV’s “Top Chefs” and individual consumers have sued companies that make and sell the product, alleging that it often does not meet international and U.S. standards. Martin v. Carapelli USA, LLC, No. BC442300 (Cal. Super. Ct., Los Angeles Cty., filed July 30, 2010). The complaint cites a June 2010 study conducted by University of California at Davis’s Olive Oil Center researchers who apparently concluded that samples of imported olive oil labeled as “extra virgin” often did not meet applicable standards. They allegedly determined that the failures could be attributed to (i) oxidation from poor handling, (ii) “adulteration with cheaper refined olive oil,” or (iii) oil made from inferior olives, processing flaws, and/or improper oil storage. According to the complaint, “For years, chefs and home cooks have shared anecdotal…
A federal court in California has reportedly dismissed claims that ConAgra Foods, Inc. provided inadequate cooking instructions on its chicken pot pie products. Meaunrit v. ConAgra Foods, Inc., No. 09-02220 (N.D. Cal., decided July 20, 2010). More than 250 people purportedly got sick after eating the company’s pot pies in 2007 in a Salmonella outbreak that led to a nationwide recall. The named plaintiff in this putative class action apparently did not get sick, but claimed that the company put human health at risk by providing inadequate cooking instructions too difficult for the average consumer to understand. She also alleged that the company’s production facilities subjected consumers to food borne illnesses by failing to adequately prevent bacterial contamination of its products. According to the court, federal agencies pre-approved ConAgra’s product labeling and, “[b]ecause the pre-approval process includes a determination of whether the labeling is false and misleading, and the gravamen of…
A federal court in California has denied in part and granted in part the motion to dismiss filed by Smart Balance, Inc., which is defending a putative class action alleging that the company misled consumers by marketing its Nucoa margarine as cholesterol-free and healthy despite the artificial trans fat in the product. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered July 30, 2010). The plaintiff alleges violations of the state’s unfair competition and false advertising laws and violation of the Consumer Legal Remedies Act. She seeks an injunction requiring that the misleading advertising practices cease, a corrective advertising campaign, restitution, and an injunction requiring the destruction of all misleading and deceptive materials and products. The defendant asserted that the factual allegations lacked sufficient specificity and also contended that the complaint be dismissed because it was based on conduct outside the applicable limitations period. Declining to consider some materials submitted…
According to a news source, a company that makes high-priced cookware and targets its sales to Spanish-speaking immigrants in the Los Angeles area has agreed to settle litigation accusing it of fraudulently claiming that its products could cure diseases ranging from cancer and Alzheimer’s to diabetes and heart disease. California v. Rena Ware Int’l, Inc., No. BC437981 (Cal. Super. Ct., Los Angeles Cty., settlement reached July 1, 2010). California Attorney General Jerry Brown brought the lawsuit, alleging unfair competition and false advertising. Sales representatives reportedly told consumers that the cookware reduced high blood pressure by removing hormones from meat while it cooked. Under the agreement, the manufacturer will pay a total of $625,000 to resolve the dispute and must ensure, by means of an independent monitor, that it will refrain from using either false information or high-pressure sales tactics. See Mealey’s Personal Injury Report, July 12, 2010.
A federal court in California has dismissed a putative class action alleging that consumers were misled into believing that Cap’n Crunch’s Crunch Berries® cereal contained real berries or fruit. Werberl v. PepsiCo, Inc., No. 09-04456 (N.D. Cal., decided July 1, 2010). Noting that one law firm had filed unsuccessful suits in two other California federal district courts on behalf of two other class representatives, the court observed that the claims before it were “virtually identical.” Additional information about the dismissal of one of the other cases appears in issue 306 of this Update. According to the court, “no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries” and any reliance on the use of the term “crunch berries” to imply “that real berries or fruit are contained in the cereal would neither be reasonable nor justifiable.” The court also found that leave to amend was unwarranted…
