A federal court in California has certified a statewide class of those who purchased Twinings North America’s green, black and white tea products labeled as a “Natural Source of Antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered April 24, 2014). Details about a previous ruling narrowing the claims appear in Issue 509 of this Update. So ruling, the court rejected the defendant’s argument that the proposed class lacked ascertainability “because few, if any, company records exist to identify purchasers or which products they bought, and consumers did not keep receipts or product containers.” According to the court, many classes similar to this one had been certified by courts in the Ninth Circuit to the extent that the “class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.”…
Category Archives U.S. Circuit Courts
A federal court in New York has dismissed an amended complaint filed against high-fructose corn syrup (HFCS) manufacturers, alleging that the HFCS in foods and beverages, such as McDonald’s hamburger buns and Pepsi, was a substantial factor in causing a 14-year-old girl to develop Type 2 diabetes. S.F. v. Archer-Daniels-Midland Co., No. 13-634, decided April 21, 2014). The plaintiff alleged market-share liability under the tort doctrines of strict liability, negligence and failure to warn. The court agreed with the defendants that Type 2 diabetes is a multifactorial disease, stating “[n]o expert opinion is required to arrive at this conclusion.” And even accepting the allegations as true, the court said, “[T]here is little in it to suggest that Plaintiff could prove that her consumption of some foods containing HFCS over the course of her life was a substantial factor in causing Type 2 diabetes. . . . [A]side from idly listing various…
A federal court in California has determined that a consumer case alleging that Safeway was negligent for failing to notify customers of food recalls may proceed. Hensley-MacLean v. Safeway, Inc., No. 11-01230 (N.D. Cal., order entered April 7, 2014). According to the court, Safeway failed to justify a post-sale exception to California’s negligence law, which imposes a general duty of care. The plaintiffs claim that Safeway should—and could easily—notify customers of food recalls after they have purchased the recalled products because Safeway collects contact information from its loyalty card customers. Safeway argued that it had no duty to warn customers after they have taken the products out of the store. Rejecting the company’s argument, the court observed that Safeway could clearly foresee that its customers would consume the products purchased at its stores. The court also identified a number of previous decisions holding that the manufacturer’s duty extends beyond the…
A federal court in California has granted beverage manufacturer Santa Cruz’s motion to dismiss a putative class action alleging that the “evaporated cane juice” (ECJ) listed on its beverage labels is merely sugar, thus violating the Food and Drug Administration’s (FDA’s) required use of an ingredient’s “common or usual name.” Swearingen et al. v. Santa Cruz Natural Inc., No. 13-4291 (N.D. Cal., order entered April 2, 2014). Finding that FDA had primary jurisdiction over the matter, the court cited a March 5, 2014, notice that the agency has reopened the comment period on its draft industry guidance pertaining to the use of the term ECJ on food labels. Details about FDA’s action appear in Issue 516 of this Update. According to the court, this notice clearly indicates that FDA is currently engaged in “active rulemaking on the issue” and intends to resolve the matter. Citing FDA’s superior resources to determine…
Diageo Americas Supply, Inc. has filed a declaratory judgment action against the Tennessee Alcoholic Beverage Commission director challenging the constitutionality of a 1937 law that requires licensed alcohol beverage makers in the state to store their products “only within the county authorizing the operation or in a county adjacent to the county authorizing the manufacturing operation, and such possession shall be limited to storage facilities of such manufacturer” (Storage Law). Diageo Americas Supply, Inc. d/b/a George A. Dickel & Co. v. Bell, No. 14-0873 (M.D. Tenn., filed March 28, 2014). Alleging that the law has never been enforced, the complaint includes the defendant’s March 20 letter warning the company that it was in violation of the Storage Law because it “is storing product (manufactured/distilled alcoholic beverages) produced at its Tullahoma, Tennessee, distillery in warehouses located in Louisville, Kentucky.” According to the company, most of its distilled alcohol beverages are stored on-site…
A federal court in California has dismissed the claims of one named plaintiff in a putative class action alleging that certain Costco Kirkland branded products are misbranded and deceptive, and narrowed the claims of the other named plaintiff. Thomas v. Costco Wholesale Corp., No. 1202908 (N.D. Cal., order entered March 31, 2014). The plaintiff whose claims were dismissed for lack of standing had alleged that the “0 grams trans fat” labeling on Kirkland Signature Kettle Chips was untruthful or misleading. The court agreed with the defendant that she had not cured the standing defects in her second amended complaint (SAC) and thus dismissed her claims with prejudice. Among other matters, she failed to (i) allege that the chips she purchased included any amount of trans fat or that she received a product different from the one as labeled, (ii) demonstrate that the label violated 21 C.F.R. § 101.13(h)(1), or (iii)…
A federal court in California has granted in part and denied in part the motion to dismiss filed in a putative class action against Whole Foods Market. Pratt v. Whole Foods Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., order entered March 31, 2014). The claims relate to a number of 365 Everyday Value® products that the plaintiff purchased and involve the following allegedly unlawful or misleading label representations: “evaporated cane juice” (ECJ), “natural” and “no sugar added.” Because the plaintiff abandoned in his amended complaint all claims regarding the defendants’ whipped topping product, the court dismissed all claims based on this product with prejudice as to the plaintiff and without prejudice as to any putative class member. The “no sugar added” claims were thus dismissed, “as the only product alleged to have such a misleading claim was the whipped topping.” The court also emphasized that, per its August 2013 order, any claims…
A federal court in Kentucky has determined that distillery neighbors may proceed with state law-based tort claims alleging that the facility’s emissions cause “whiskey fungus” to accumulate on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-0334 (W.D. Ky., Louisville Div., order entered March 19, 2014). Additional details about the lawsuit appear in Issue 444 of this Update. Finding conflicting authority on whether the Clean Air Act (CAA) preempts the plaintiffs’ claims for negligence and gross negligence, temporary and permanent nuisance and trespass, the court carefully analyzed related U.S. Supreme Court, federal court and state court rulings. It concluded that the Third Circuit’s analysis in Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), and the Sixth Circuit’s in Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d (6th Cir. 1989), “capture the prevailing law for…
A California resident has filed a putative statewide class action against H.J. Heinz Co. alleging that its Distilled White Vinegar is falsely advertised as “all natural” because it is made with genetically modified (GM) crops. Banafsheha v. H.J. Heinz Co., No. 14-2023 (C.D. Cal., filed March 17, 2014). Alleging that she paid more for the product due to the “all natural” labeling and would not have purchased the product had she known that it contains GM ingredients, the plaintiff claims, “Over 70% of U.S. corn crops are GM. Defendant sources its ingredients from U.S. commodity suppliers who supply GM crops. Large volume food manufacturers who wish to use non-GM ingredients must specifically source their crops, typically from Europe, or undertake the additional step and expense of verifying the supply from non-GM growers through identity preservation programs. In most instances, manufacturers who purchase only non-GM crops for their products specifically label the…
The University of Denver law professors who filed a challenge to Utah’s law barring audio or video recordings of purported animal abuse in agricultural operations have filed a second challenge to a similar law that recently took effect in Idaho. Animal Legal Def. Fund v. Otter, No. 14-0104 (D. Idaho, filed March 17, 2014). Both lawsuits challenge the so-called “ag-gag” laws on constitutional grounds. Utah’s attorney general has requested that the lawsuit filed in that state in 2013 be dismissed on standing grounds; the issue will be argued on May 15. Filed against the governor on behalf of animal rights organizations, the American Civil Liberties Union, Center for Food Safety, journalists, historians, and an “agricultural investigations expert,” the Idaho lawsuit contends that the statute “defines ‘agricultural production facility’ so broadly” that it would apply to “public parks, restaurants, nursing homes, grocery stores, pet stores, and virtually every public accommodation and…
