The parent of a 14-year-old with type 2 diabetes has sued several companies that make high-fructose corn syrup (HFCS), alleging that the substance is “toxic” and its consumption caused the teen’s disease. S.F. v. Archer-Daniels-Midland Co., No. 13-634 (W.D.N.Y., filed June 17, 2013). The complaint details the purported effects of HFCS on the human body, asserting that it is associated with metabolic disease, liver inflammation and insulin resistance, chronic hyperinsulinemia, and type 2 diabetes. It also alleges that the fructose in HFCS “‘tricks’ the brain into wanting more food and stimulates excessive and continued consumption” and that it “bypasses the insulin-driven satiety system, suppressing ‘the degree of satiety’ that would normally result from a meal of glucose or sucrose, thereby causing and contributing to over consumption on a chronic basis with the adverse effects therefrom including the development of type 2 diabetes.” Alleging that HFCS use and consumption have “become nearly…
Category Archives U.S. Circuit Courts
A federal court in California has denied the defendant’s motion to dismiss a putative class action alleging that the company misleads consumers by claiming that its Smart Balance® butter products contain plant sterols that can block the absorption of cholesterol; according to the plaintiff, a single serving of the product contains insufficient sterols to achieve the stated benefit. Aguilar v. Boulder Brands, Inc., No. 12-1862 (S.D. Cal., order entered June 10, 2013). Among other matters, the court determined that the named plaintiff had standing to assert claims involving two products that she did not purchase, because the products “advertise the same health benefits arising from the same additional ingredients found on the label in the same position” as the product she did purchase. According to the court, her ability to represent class members allegedly injured by similar products must be analyzed under Rule 23 and not on a motion to…
The Judicial Panel on Multidistrict Litigation (JPML) has granted the defendants’ motion for centralization in litigation involving allegations that Subway Sandwich Shops, Inc., and Doctor’s Associates, Inc., “engaged in a false or misleading advertising campaign regarding the size of the Subway Footlong sandwich.” In Re: Subway Footlong Sandwich Mktg. & Sales Practices Litig., MDL No. 2439 (JPML, decided June 10, 2013). According to the order, the seven actions addressed by JPML involve common factual questions, with plaintiffs alleging “that defendants have uniform standards and practices with respect to the manufacturing process and franchisee training which result in the actual length of the sandwich being materially shorter than advertised in violation of state consumer protection laws.” JPML has therefore chosen to centralize the actions in the U.S. District Court for the Eastern District of Wisconsin, which provides “a geographically central forum for this nationwide litigation, and will be convenient and accessible for…
The Judicial Panel on Multidistrict Litigation (JPML) has ordered the centralization of six actions claiming that Anheuser-Busch Companies, LLC, systematically overstated the alcohol content of its malt beverage products by diluting them with water. In Re: Anheuser-Busch Beer Labeling Mktg. & Sales Practices Litig., MDL No. 2448 (JPML, decided June 10, 2013). The putative class actions being centralized have all alleged that the beer manufacturer added extra water to 11 different products despite its claims that any deviation from the alcohol content stated on the product label “is within the range permitted by federal regulation.” In transferring the actions to the U.S. District Court for the Northern District of Ohio, the panel agreed with plaintiffs that “notwithstanding defendants’ apparent acknowledgement of some variance for unspecified products, the alleged conduct at issue—systematic overstatement of alcohol content—will remain in dispute and will involve complex discovery concerning the calibration of the involved equipment…
The New York Supreme Court Appellate Division recently heard arguments in the New York City Department of Health and Mental Hygiene’s (DOHMH’s) appeal of an order striking down its initiative to limit the size of sodas sold in restaurants and other venues. According to media reports, city lawyer Fay Ng argued that, contrary to the lower court’s decision, the “Portion Cap Rule” did not exceed DOHMH’s authority and has a rational basis in the need to curb rising obesity rates without entirely precluding consumer choice. In overturning the regulation, which would have taken effect March 12, 2013, New York Supreme Court Judge Milton Tingling not only ruled that DOHMH lacked “the authority to limit or ban a legal item under the guise of ‘controlling chronic disease,’” but that the measure would have “arbitrary and capricious consequences” arising from “uneven enforcement” and “loopholes,” such as application to some but not all…
An outbreak of hepatitis A linked to frozen berry and pomegranate mixes sold in eight states has reportedly sickened 87 consumers to date and spawned at least three putative class actions seeking compensation for hepatitis A testing and vaccination. According to media reports, residents in Arizona, California and Nevada filed lawsuits after the Colorado Department of Public Health and Environment advised all consumers exposed to the allegedly contaminated berries to request hepatitis A vaccination or immune globulin injections to reduce their risk of contracting the disease. In addition to the costs of vaccination, the complaints against Townsend Farms Corp. are seeking compensation for time missed from work as well as other expenses related to the outbreak. See Law360, June 3, 2013; NBC News, June 11, 2013; KTAR, June 12, 2013; KRNV & MyNews4.com, June 13, 2013.
A California resident has filed a putative statewide class action alleging that Pepperidge Farm falsely advertised and labeled its Goldfish® crackers as “Natural” despite using genetically modified (GM), synthetic or artificial ingredients to make them. Koehler v. Pepperidge Farm, Inc., No. 13-2644 (N.D. Cal., filed June 10, 2013). Among other matters, the plaintiff alleges that the company changed the product’s packaging and labeling to remove the “Natural” statement and characterizes this as “an implied admission that the Products were not natural at all material times hereto when the Plaintiff and putative Class Members purchased the Products that claimed to be ‘Natural’ and no longer make said claim.” According to the complaint, the company’s cheddar-flavored products “contain genetically modified soy in the form of soybean oil, as well as the following ingredients, which, upon information and belief, were each synthetically produced: thiamine mononitrate (‘vitamin B1’), riboflavin (‘vitamin B2’), folic acid and…
Two additional putative class actions have been filed against Monsanto Co., alleging that the recent discovery of genetically modified (GM) wheat on a farm in Oregon has harmed wheat farmers throughout the United States due to diminished prices “resulting from loss of export and domestic markets” and “increased grower costs resulting from the need to, inter alia, maintain the integrity of the soft white wheat supply and/or to keep genetically engineered wheat from further entering the general wheat supply and export channels.” Dreger Enters. v. Monsanto Co., No. 12-211 (E.D. Wash., Spokane, filed June 5, 2013); Ctr. for Food Safety v. Monsanto Co., No. 13-213 (E.D. Wash., filed June 6, 2013). Like the suit filed by a Kansas farmer, the plaintiffs allege nuisance, negligence and strict liability as to Monsanto’s conduct of field tests of GM wheat throughout the country from 1998 to 2005. Information about the other lawsuit appears…
According to a news source, a California appeals court indicated during oral argument that it would likely reverse the dismissal order of a lower court in a wrongful death action alleging that Dole Food Co. paid Colombian paramilitaries to kill 170 people near South American banana plantations. Gomez v. Dole Food Co., Inc., No. B242400 (Cal. Ct. App., 2d App. Div.). During the June 12, 2013, hearing, the court reportedly said “legal problems” with the trial court’s dismissal were sufficient to warrant reversal. In 2012, the lower court dismissed the suit after the plaintiffs’ lawyers failed to file a new complaint within 30 days after an appeals court ruling allowing them to do so became final. Plaintiffs’ counsel apparently claimed that they were unaware of the deadline imposed under California procedural rules and that the court erred by dismissing the case on the basis of Dole’s purported ex parte application. See Law360,…
A federal court in California has preliminarily approved a $3 million settlement of claims by state Starbucks Corp. employees that the company denied them off-duty breaks because its busy stores were understaffed and the company required employees to take their breaks on-duty if only two employees were present. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., order entered June 10, 2013). According to a news source, the court expressed some reservations about the incentive awards to the named plaintiffs, noting that the Ninth Circuit “seems to be taking an evermore-aggressive look at incentive awards and expecting the trial court to look closely at those things.” Additional information about the settlement appears in Issue 484 of this Update. See Law360, June 10, 2013.
