California residents have filed a putative class action against Pinnacle Foods Group, LLC in federal court, alleging that its frozen food products, if prepared as directed, will not “reach the ‘kill step’ temperature necessary to destroy dangerous bacteria.” Meaunrit v. The Pinnacle Foods Group, LLC, No. 09-4555 (N.D. Cal., filed September 28, 2009). They also claim that the company’s failure “to use appropriate quality control measures within its supply chain,” means that “almost every ingredient in these products is a potential carrier of pathogens, according to government and industry officials.” According to the complaint, “[s]ince there is no reasonable way to know whether Salmonella or other bacteria has [sic] been destroyed based on the design of these products, Plaintiffs and the class suffered harm due to Pinnacle’s conduct.” The named plaintiffs seek to represent a class of either California or U.S. residents, who bought “pot pie products under the Swanson and…
Category Archives 9th Circuit
The Physicians Committee for Responsible Medicine (PCRM) has sued KFC Corp. and its parent Yum! Brands, Inc. in a California court, alleging that they have failed to comply with Proposition 65 (Prop. 65) by selling grilled chicken without warning consumers that it contains a substance, PhIP, known to the state to cause cancer. PCRM v. KFC Corp., No. __ (Cal. Super. Ct., San Francisco Cty., filed September 23, 2009). According to a news source, the allegations are nearly identical to litigation PCRM filed in 2008 against other fast-food restaurants. A court dismissed that complaint, citing the preemption of Prop. 65 claims by federal law which requires chicken to be cooked to food-safe temperatures. PCRM has reportedly appealed the court’s ruling, arguing that the food-safe temperature requirement is merely U.S. Department of Agriculture policy and that states traditionally govern public health and safety issues. KFC was not apparently included in the earlier…
A California man who alleges that he was misled by the packaging and advertising for Cap’n Crunch with Cruncherries® has brought a putative class action against the cereal maker in federal district court. Werbel v. Pepsico, Inc., No. 09-4456 (N.D. Cal., filed September 22, 2009). Alleging violations of California’s unfair competition and false advertising laws, intentional misrepresentation, breach of express and implied warranties, and violations of the Consumers Legal Remedies Act, the plaintiff claims that he and a class of California consumers were misled by representations that the product contained fruit. Yet, according to the complaint, “the only fruit content is a touch of strawberry fruit concentrate—twelfth in order on the ingredient list, just after partially hydrogenated soybean oil and ‘natural and artificial flavors,’ and just before malic acid.” According to the complaint, the plaintiff “trusted the Quaker label because of the company’s long history of producing other wholesome breakfast…
A putative class action was reportedly filed in a California state court against Nestlé, alleging that the company falsely advertises its “Juicy Juice Brain Development Fruit Juice” as a product that will improve toddlers’ brain function. Plaintiff Alexis Farmer, who then dismissed the complaint without prejudice several days later, reportedly claimed that she purchased the company’s juice relying on labeling and advertisements stating that it contained DHA Omega-3, a “fatty acid especially important for brain development in children under two years old.” Farmer was seeking damages and injunctive relief; her complaint apparently alleged false and misleading advertising, unjust enrichment, fraud, and civil code violations. See Courthouse News, September 23, 2009. In a related development, Health Canada has apparently decided not to stop infant-formula manufacturers from claiming that DHA, in any amount, will support normal brain and eye development, particularly for children under two. The Canadian Food Inspection Agency asked the…
A federal court in California has determined that the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) erred when it deregulated a genetically engineered (GE) sugar beet without preparing an environmental impact statement. Ctr. for Food Safety v. Vilsack, No. 08-00484 (N.D. Cal., decided September 21, 2009). Thus, the court granted the motion for summary judgment filed by the Center for Food Safety and other environmental interest groups and scheduled a hearing for October 30, 2009, to decide what remedies will be appropriate. A court in the same federal district ruled in 2007 that APHIS erred in deregulating GE alfalfa, and this court based its ruling on that decision, which resulted in an effective halt to the use of GE alfalfa. According to the court, which discussed at length how sugar beets are grown and how cross-pollination can occur with non-GE sugar beets and related Swiss chard and…
Putative class claims have been filed in a California federal court against Old Mother Hubbard, Inc. and Petco Animal Supplies, Inc. alleging fraud in the sale of Wellness pet food. Barney v. Old Mother Hubbard, Inc., No. 09-06194 (C.D. Cal., filed August 25, 2009). According to a news source, the complaint contends that the pet food, which is more expensive than other brands, is advertised as containing only “human grade” meat, while it actually contains feathers, viscera, skin, and bones. The plaintiffs, who have invoked the court’s diversity jurisdiction, seek punitive damages and an injunction to stop ads which allegedly claim that the pet food ingredients are “of the same quality you would feed to your own family.” See Courthouse News Service, August 31, 2009.
A California trial court has determined that the insurer of the nation’s largest seller of bagged fresh spinach must pay for its losses from the 2006 nationwide E. coli outbreak that led to a Food and Drug Administration (FDA) advisory against eating any fresh spinach. Fresh Express, Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. M88545 (Cal. Super. Ct., Monterey Cty., decided August 18, 2009). The outbreak was ultimately traced to a different producer, and the insurer denied coverage. Following a bench trial, the court determined that (i) the produce company introduced sufficient evidence to establish that it committed “errors” within the policy’s meaning by failing, before purchasing spinach, to conduct a food safety audit of the field where it was grown to verify that the growers had complied with good agricultural practices; (ii) this verification of good practices compliance “was an integral and inseparable part of its safe manufacturing practices”;…
In the wake of lawsuits filed by the manufacturer of a pomegranate-juice based product line, consumers have now begun seeking damages against the same defendants for alleged deception and fraud in the sale of pomegranate juice purportedly containing “little or no pomegranate juice.” Burcham v. Welch Foods, Inc., No. 09-05946 (C.D. Cal., filed August 14, 2009). Additional information about the lawsuits filed by POM Wonderful LLC against Welch Foods, Inc. and Ocean Spray Cranberries, Inc. appears in issues 290 and 313 of this Update. According to plaintiff Maryam Burcham, seeking damages for herself and a class of “All persons residing in California who purchased Welch’s ‘White Grape Pomegranate Juice,”’ the defendant’s product “purports to combine white grape and pomegranate into a single juice product. However, the truth is that the main ingredients in Defendant’s White Grape Pomegranate Juice are actually cheap white grape and apple juice, instead of pomegranate juice,…
A California state judge has reportedly issued a tentative ruling on the styrene industry’s request to enjoin Proposition 65 (Prop. 65) regulators from listing styrene as a chemical known to the state to cause cancer. Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., decided August 12, 2009). Further details about the litigation appear in issue 313 of this Update. According to a news source, Superior Court Judge Shelleyanne Chang found no “known” evidence that styrene is a carcinogen and that the designation would likely have a devastating and stigmatizing effect on the product’s use. Widely used in food packaging, styrene plastics are apparently crucial to the transportation and sale of strawberries, raspberries and blueberries, state industries worth $1.6 billion. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed listing styrene as a Prop. 65 substance, which would require public warnings, based on “possibly…
An industry trade group has sued Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to stop it from listing styrene as a carcinogen under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Styrene Info. & Research Ctr. v. OEHHA, No. 09-53089 (Cal. Super. Ct., Sacramento Cty., filed 07/15/09). According to the complaint, styrene does not cause human cancer, and its proposed Prop. 65 listing would cause the $28-billion-a-year industry “irreparable harm” by stigmatizing the chemical. It also alleges that OEHHA failed to comply with administrative procedures in interpreting and implementing Prop. 65, created secret interpretative standards and refused to consider new scientific evidence indicating that styrene is not “known to cause cancer.” Styrene is used in milk and egg cartons, berry baskets, produce shipping crates, foodservice containers, plastic pipes, automobile parts, medical equipment, countertops, and many other products. To support its proposed styrene listing, OEHHA cited a 2002 International…
