A California federal court has granted summary judgment to The Hershey Co. in a lawsuit alleging that its Brookside chocolates are misleadingly labeled as made with "no artificial flavors" because they contain malic acid. Clark v. Hershey Co., No. 18-6113 (N.D. Cal., entered November 15, 2019). The court found that the named plaintiffs admitted in depositions that they did not rely on the contested label. One plaintiff "did suffer an injury as required by California law—he would not have purchased the Brookside products if he had known they contained artificial ingredients," the court noted. "However, his injury was not caused by the alleged mislabeling of the product, but rather his misunderstanding that the 'No Artificial Flavors' statement meant there were no artificial ingredients whatsoever in the product. Accordingly, regardless of defendant's alleged mislabeling, [the plaintiff] would have suffered the injury." A second and third plaintiff argued that they had relied…
Category Archives U.S. Circuit Courts
A plaintiff has filed a putative class action alleging that Burger King Corp. represented its Impossible Whopper in association with the Impossible Burger, which is "well known as a meat-free and vegan meat alternative," but cooked the Impossible Whoppers "on the same grills as its traditional meat products, thus covering the outside of the Impossible Whopper's meat-free patties with meat by-product." Williams v. Burger King Corp., No. 19-24755 (S.D. Fla., filed November 18, 2019). Burger King advertised the Impossible Whopper as "100% Whopper" and "0% Beef," leading the plaintiff, a vegan, to rely "on Defendant's deceptive representations about the Impossible Whopper and believing that the 'Impossible' vegan meat patty would be prepared in a manner that maintained its qualities as a vegan (meat-free) burger patty." The plaintiff alleges breach of contract, unjust enrichment and violation of Florida's consumer-protection statute and seeks class certification, damages and a declaration "that Defendant be…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. lists "organic dehydrated cane juice solids" as an ingredient in its 365 Everyday Value instant oatmeal rather than "sugar." Warren v. Whole Foods Mkt. Grp. Inc., No. 19-6448 (E.D.N.Y., filed November 15, 2019). "Consumers expect ingredients on a product to be declared by their common or usual name," the complaint asserts. "Where an ingredient contains the term 'juice,' consumers expect that ingredient to be derived from a consumable fruit or vegetable." The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for alleged negligent misrepresentation, fraud and breach of express warranty.
Food & Water Watch Inc. (FWW) has filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) has "engaged in dilatory and obstructionist tactics" to avoid fulfilling the organization's Freedom of Information Act (FOIA) requests on documents related to the establishment of the New Swine Inspection System (NSIS). Food & Water Watch Inc. v. USDA, No. 19-3362 (D.D.C., filed November 7, 2019). FWW argues that USDA has "actually or constructively and unlawfully denied" its requests for "data and other agency records justifying" the NSIS rules "that replace government inspectors with plant employees in performing certain crucial animal and carcass inspections." The complaint alleges that the defendants "have failed to disclose records responsive to close to half of the originally requested items; have repeatedly ignored attempts to clarify what they have released; have released inaccurate, non-responsive records; have forced FWW to jump over the procedural hurdle of submitting an additional…
Ocean Spray Cranberries Inc. has agreed to pay $5.4 million to settle claims that it misleadingly advertised its beverages as lacking artificial flavors despite containing malic avid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., filed November 8, 2019). Under the agreement, the company will stop using the phrase "no artificial flavors" on its labeling or in other marketing materials within 12 months. Class members may receive $1 per bottle up to 20 bottles, and no proof of purchase will be required.
The parties in a lawsuit alleging Kellogg Sales Co. misrepresented its cereals as healthy have reached an agreement that would require the company to pay $20 million in payments and make marketing changes valued at more than $11 million. Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., filed October 21, 2019). The lawsuit alleged that Kellogg's Smart Start, Raisin Bran, Krave, Crunchy Nut and Frosted Mini-Wheats cereals, along with its Nutri-Grain bars, were misleadingly marketed as healthy despite containing high levels of sugar. Under the settlement agreement, Kellogg will (i) remove or limit the use of "Heart Health" claims on Smart Start and Raisin Bran; (ii) use "healthy" as an implied nutrient content claim only; (iii) remove "lightly sweetened" from Frosted Mini-Wheats and Smart Start; (iv) refrain from using "No High Fructose Corn Syrup" or an equivalent phrase; and (v) use "wholesome," "nutritious" and "benefits" or equivalent words only…
A consumer has filed a putative class action alleging that Brew Dr. Kombucha LLC markets its products as containing "billions" of "live and active cultures" or "beneficial bacteria, yeasts and organic acids" despite containing "only 50,000" colony forming units. Amos v. Brew Dr. Kombucha LLC, No. 19-1663 (D. Ore., Portland Div., filed October 16, 2019). "Because consumers specifically purchase kombucha products because of their probiotic content, and rely on the amount of probiotics stated on the product labeling when choosing what type and brand of kombucha drink product to purchase, Defendant’s product labels and advertisements were false, misleading, and reasonably likely to deceive the public," the plaintiff argues. For allegations of breach of warranties and unjust enrichment, the plaintiff seeks class certification and damages.
Following the August 2019 dismissal of a lawsuit brought by advocacy groups alleging similar facts, a group of consumers has filed a putative class action alleging that Sanderson Farms Inc. misleads consumers by marketing its chicken as “100% Natural.” Lentz v. Sanderson Farms Inc., No. 19-6570 (N.D. Cal., filed October 11, 2019). The complaint alleges that “Sanderson’s advertising misleads consumers in four ways,” including representations that (i) the chickens “were not given antibiotics or other pharmaceuticals,” (ii) the chickens “were raised in a natural environment,” (iii) “there is no evidence that the use of antibiotics and other pharmaceuticals in poultry contributes to the evolution of antibiotic-resistant bacteria” and (iv) the chicken products “do not contain any antibiotic or pharmaceutical residue.” A previous case brought by two advocacy groups was dismissed because of a lack of standing; the court found that the groups could not show sufficient injury because “they were…
Joining a number of pending putative class actions, a New York plaintiff's firm has filed three lawsuits alleging that Wegmans Food Markets Inc., Whole Foods Market Group Inc. and Moran Foods LLC mislead consumers by marketing their products as vanilla-flavored while using artificial flavors. As with similar cases previously filed, the complaints target dairy and associated products—ice cream and almondmilk—and allege that the front-of-package representation of the flavor as "vanilla" amounts to violations of New York's consumer-protection statutes. Arriola v. Wegman Food Markets Inc., No. 19-9227 (S.D.N.Y., filed October 4, 2010); Pinkston v. Whole Foods Mkt. Grp. Inc., No. 19-9362 (S.D.N.Y., filed October 9, 2019); Smith v. Moran Foods LLC, No. 19-9453 (S.D.N.Y., filed October 12, 2019).
The California Chamber of Commerce (CalChamber) has filed a lawsuit aiming to prevent the state from “enforcing a requirement to provide a false, misleading, and highly controversial cancer warning for food and beverage [] products that contain the chemical acrylamide.” Cal. Chamber of Commerce v. Becerra, No. 19-0962 (E.D. Cal., filed October 7, 2019). CalChamber asserts that acrylamide “is not intentionally added to foods” but rather “is formed naturally in many types of foods when cooked at high temperatures or otherwise processed with heat.” The complaint argues that although “certain governmental and scientific entities” have identified acrylamide as a carcinogen, “[s]cientific studies in humans, however, have found no reliable evidence that exposure to acrylamide in food products is associated with an increased risk of developing any type of cancer. In fact, epidemiologic evidence suggests that dietary acrylamide—i.e., acrylamide that forms naturally in normal cooking of many food products—does not cause…
