A federal court in California has granted motions to certify California classes of consumers in two separate consumer-fraud lawsuits involving the “all natural” claims on products made by Bear Naked, Inc. and the Kashi Co. Thurston v. Bear Naked, Inc., No. 11-2890, Astiana v. Kashi Co., No. 11-1967 (S.D. Cal., orders entered July 30, 2013). Details about the latter suit, a consolidated matter, appear under the plaintiff’s name Bates in Issue 408 of this Update. The court agreed with Bear Naked that the named plaintiffs failed to sufficiently show that “natural” has a uniform definition among class members, that a sufficient number of class members would have relied to their detriment on the representation or that the company’s “representation of natural in light of the presence of the challenged ingredients would be considered to be a material falsehood by class members.” Still, the court determined that the plaintiff made a sufficient showing of…
Category Archives U.S. Circuit Courts
A federal court in New York has determined that while plaintiffs alleging they were sold olive-residue oil, or Pomace, instead of the “100% Pure Olive Oil” appearing on the labels of The Gourmet Factory’s Capatriti-brand products could not maintain a cause of action under the Magnuson-Moss Warranty Act, their claims did exceed the $5 million threshold for maintenance of the action in federal court under the Class Action Fairness Act (CAFA). Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered July 26, 2013). The plaintiffs apparently based their amount-in-controversy allegation on documents that the defendant submitted in parallel litigation brought by an olive oil trade association. Details about that suit appear in Issues 470, 482 and 483 of this Update. Thus the court rebuffed the defendant’s attempt to fault the plaintiffs for failing to conduct an independent investigation into the amount-in-controversy before filing the complaint,…
A federal magistrate has recommended that General Mills’ motion to dismiss a putative consumer fraud class action be denied without prejudice and that, under the primary jurisdiction doctrine, the suit be stayed “pending action by the FDA [Food and Drug Administration] with respect to the referral made by Judge Rogers in Cox v. Gruma. Van Atta v. General Mills, Inc., No. 12-2815 (D. Colo., recommendation entered July 18, 2013). At issue is the company’s claim that its granola bars are “100% Natural” when they allegedly contain genetically modified organisms (GMOs). Finding that the food-labeling issue falls within FDA’s regulatory authority and that the agency “has not issued a rule which requires products containing GMOs to be labeled as such, nor has the FDA issued a rule regarding whether products labeled ‘natural’ may contain GMOs,” the magistrate found invocation of the primary jurisdiction doctrine appropriate. In this regard, the magistrate stated,…
The U.S. Food and Drug Administration (FDA) has filed a motion for reconsideration or stay of a court order establishing rulemaking deadlines under the Food Safety Modernization Act. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., Oakland Div., motion filed July 19, 2013). More information about the litigation appears in Issues 481, 487 and 489 of this Update. Scheduled to be heard on August 28, 2013, the motion contends that two of the seven rulemakings at issue, the sanitary transport rule and the intentional adulteration rule, pose challenges that preclude their issuance by the court’s deadline. Requesting that the court reconsider its order largely on the basis of arguments already rejected, the agency also asks the court to stay the order pending the Solicitor General’s determination whether to authorize an appeal and, if an appeal is authorized, while the appeal is pending.
Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (S.D. Fla., filed July 12, 2013). According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension…
A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (S.D.N.Y., filed July 12, 2013). According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and…
A Hawaii resident has filed a putative nationwide class action against Cargill, Inc., alleging that the company falsely advertises its Truvia® sweetener product as “natural” when it is actually made from ingredients that are “either synthetic or harshly chemically processed.” Howerton v. Cargill, Inc., No. 13-0336 (D. Haw., filed July 8, 2013). According to the complaint, the company markets the product with “natural imagery such as the leaves of the stevia plant,” yet “the stevia-derived ingredient, Reb A, is not the natural crude preparation of stevia, but rather is a highly chemically processed and purified form of the stevia leaf extract,” and Reb A “comprises only 1% of Truvia.” The plaintiff alleges that “the main ingredient, erythritol, which Cargill also purports to be a natural ingredient derived through natural processes, is not made like it is in nature, but rather is synthetically made. Cargill describes the process of obtaining stevia…
A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.” Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally…
Naked Juice Co. has agreed to settle putative class claims that it falsely advertised some of its juice and smoothie products as “all natural” and not genetically modified (GMO); while denying the allegations, the company will establish a $9 million settlement fund. Pappas v. Naked Juice Co. of Glendora, Inc., No. 11-8276 (C.D. Cal., motion for preliminary approval filed July 2, 2013). Members of the putative nationwide class will each be eligible under the proposed agreement to recover a maximum of $45 dollars. The agreement will also require Naked Juice to establish a product verification program, hire or assign a quality control manager to oversee the independent testing process for the company’s product line, establish a database to allow the electronic tracking and verification of product ingredients, and modify future labeling, advertising and marketing to cease using “All Natural” and related statements.
