A federal court in Washington has dismissed the lawsuit filed by a man who alleged that inhaling the diacetyl in fumes from four to six bags of microwave popcorn daily caused his lung disease. Newkirk v. ConAgra Foods, Inc., No. 08-273 (E.D. Wash., decided July 2, 2010). Additional information about this litigation appears in issue 274 of this Update. Represented by the Independence, Missouri, attorney who has brought claims on behalf of popcorn factory workers and other consumers, Larry Newkirk sought to introduce the general causation opinion of physician David Egilman and the specific causation opinions of Dr. Charles Pue, Dr. Allan Parmet and William Ewing. The court analyzed Egilman’s proposed testimony and found it unreliable on a number of grounds, including that he sought to extrapolate residential diacetyl exposures from industrial exposures, which have been extensively studied and associated with bronchilitis obliterans, a debilitating lung disease also referred to…
Category Archives 9th Circuit
A federal court in California has denied defendant’s motion to dismiss a putative class action alleging that the company deceived the public by promoting and labeling its reformulated microwave popcorn as containing “No Added Diacetyl.” Fine v. ConAgra Foods, Inc., No. 10 01848 (D.C. Cal., order entered June 29, 2010). According to the plaintiff, she relied on defendant’s claims about “no added diacetyl” when purchasing its products, yet the popcorn still contains diacetyl. Accepting the plaintiff’s allegations as true for the purpose of ruling on the motion, the court noted that while plaintiff does not have “direct knowledge of the presence of diacetyl in Defendant’s products, Plaintiff relies on the work and statements of several health experts and alleges that ‘[k]nown “substitutes” for diacetyl still contain molecules of diacetyl.’” The defendant sought to dismiss the claims on the grounds that the plaintiff did not allege a cognizable injury and thus lacks…
A Wisconsin organic farm was reportedly scheduled to argue in court this week that state restrictions on the sale of raw milk do not apply where the sales are made to consumers who are part owners of the farm. While the legislature recently attempted to change a law that regulators contend allows incidental raw milk sales only, the state calls the farm’s sales in excess of $80,000 yearly to consumers, who each own a $10 share in the farm, well beyond what the law allows. Wisconsin’s governor vetoed the popular bill, which would have allowed on farm raw milk sales, apparently concerned that E. coli outbreaks purportedly linked to consumption of the unpasteurized product could affect the state’s entire dairy industry. Raw milk proponents dispute that any such link exists. Meanwhile, public health officials investigating a recent E. coli outbreak that has allegedly sickened eight Minnesota residents including school-aged children…
The Environmental Law Foundation has notified more than four dozen food manufacturers and retailers that they are in violation of California’s Proposition 65 Toxics Right to Know law (Prop. 65) after testing purportedly indicated the presence of lead in numerous fruit and fruit juice products. According to the foundation, “apple juice, grape juice, packaged pears and peaches (including baby food), and fruit cocktail” products contained “enough lead in a single serving that they require a warning” under Prop. 65, and the companies, since June 9, 2009, “have exposed and continue to expose consumers of their food products to lead” every day. California’s attorney general, city attorneys and county district attorneys received copies of the notice. The foundation declares in the notices that it intends “to bring suit in the public interest” against the listed companies in 60 days to correct the Prop. 65 violations. A foundation news release indicates that…
The Ninth Circuit Court of Appeals has apparently denied the National Meat Association’s request that the entire court review a recent panel decision which lifted a preliminary injunction that prevented California from enforcing a law prohibiting slaughterhouses from taking, processing or selling nonambulatory animals. Additional details about National Meat Association v. Brown, No. 09-15483 (9th Cir. March 31, 2010), appear in Issue 344 of this Update. The National Meat Association indicated in a May 18 press release that it intends to ask the U.S. Supreme Court to review the matter.
A federal district court in California has dismissed claims against the company that makes the product “I Can’t Believe It’s Not Butter,” finding that, while not preempted under federal labeling law, the complaint failed to allege facts “plausibly suggestive” of a claim entitling the plaintiff to relief under the U.S. Supreme Court’s recently adopted Twombly/Iqbal pleading standard. Rosen v. Unilever U.S., Inc., No. 09-02563 (N.D. Cal., decided May 3, 2010). The plaintiff alleged that the company violated state consumer protection laws by advertising its product as nutritious when, in fact, it contains partially hydrogenated oil, “an artificial, man-made substance that has no nutritional value and is known to cause a number of health problems.” The defendant sought to dismiss the claims as expressly preempted under the Nutritional Labeling and Education Act, contending that use of the phrase “0g Trans Fat” on product labels complies with Food and Drug Administration regulations where a…
A putative class action has reportedly been filed against California’s largest herb grower, shipper and marketer, alleging that the defendant “played California consumers for fools,” by selling as organic, and at higher prices, conventionally grown herbs. Quesada v. HerbThyme Farms, No. __ (Cal. Super. Ct., filed April 2010). According to the complaint, the company owns a large number of conventional farms and just one smaller organic farm, and, when its “profits grew at a slower rate than the company wanted, it turned to fraud.” Seeking restitution, damages and injunctive relief, the plaintiff alleges that the company labeled conventionally grown herbs as “Fresh Organic” in violation of California business and consumer fraud laws. See Courthouse News Service, April 28, 2010.
A putative class action has been filed against Kellogg USA alleging that, by calling its cereal “Froot” Loops® and including “pictures of brightly colored cereal made to resemble fruit” and actual fruit on product packaging, the company is deceiving the reasonable consumer who is led to believe the cereal contains fruit. Werbel v. Kellogg USA, No. 10-1660 (N.D. Cal., filed April 19, 2010). The named plaintiff relies on a Strategic Alliance for Healthy Food and Activity Environments study which purportedly revealed that this cereal, like many others, contains no fruit whatsoever despite packaging and advertising suggesting its presence. The plaintiff seeks to certify a class of California consumers who purchased the product in the four years preceding the lawsuit’s filing; he alleges unlawful, unfair and deceptive advertising and promotion in violation of the state’s Business & Professions Code , intentional misrepresentation, breach of implied warranties, and violations of the Consumers Legal…
A California resident has filed a putative class action in federal court against Kellogg Co., alleging that the company misled consumers by claiming its snack products were healthy and nutritious and met “stringent food safety requirements,” when in fact they contained Salmonella-contaminated peanut paste supplied by the Peanut Corporation of America. Benavides v. Kellogg Co., No. 10-02294 (C.D. Cal., filed March 29, 2010). The Peanut Corp. Salmonella outbreak led to a massive recall of food products, including Kellogg’s Austin® and Keebler® branded sandwich crackers and cookies. The complaint alleges that Kellogg hired unqualified private inspectors to audit its suppliers’ manufacturing plants while claiming that its suppliers met Codex Alimentarius Commission standards. The plaintiff seeks to certify a nationwide class of consumers with alleged monetary injury. He alleges (i) unlawful business acts and practices in violation of California’s Sherman Food, Drug and Cosmetics Law and Consumer Legal Remedies Act; (ii) deceptive marketing and…
A federal court in California has dismissed a lawsuit that the Center for Science in the Public Interest (CSPI) filed against a company which claimed its multivitamin supplements supported prostate health or reduced the risk of prostate cancer. CSPI v. Bayer Corp., No. 09-05379 (N.D. Cal., decided March 25, 2010). The court determined that CSPI could not bring claims under California’s Unfair Competition Law (UCL) or its Consumer Legal Remedies Act (CLRA) in a representational capacity on behalf of consumers. The court also found that the organization lacked standing to sue on its own behalf. According to CSPI’s complaint, the company’s conduct interfered with its mission to “provide useful, objective, and safe information to the public.” The court found that these allegations of injury were insufficient to demonstrate cognizable injury for the organization to sue on its own behalf under the UCL, which requires an action to be brought by a…
