A California resident has filed a putative class action in a California federal court against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®, alleging that the product labels and promotions are misleading. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., filed February 21, 2012). According to the plaintiff, the companies label the product as “all natural” despite purported non-natural and synthetic ingredients, such as ascorbic acid, cyanocobalamin, calcium pantothenate, niacinamide, and pyridoxine hydrochloride, which are apparently listed on product labels as Vitamins C, B12, B5, B3, and B6, respectively. He claims that reasonable consumers “do not have the specialized knowledge necessary to identify ingredients in SoBe Beverages as being inconsistent with the ‘All Natural’ claims.” The plaintiff also alleges that the companies deceive consumers by using the names of fruits on the labels. For example, the “B-Energy Strawberry Apricot, does not…
Category Archives U.S. Circuit Courts
A federal court in Minnesota has determined that General Mills Operations, LLC was entitled to an award of prejudgment interest of 10 percent per year from the date it provided a written notice of claim to the company that supplied it with contaminated beef products subject to a recall in 2008. Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd., No. 10-15 (D. Minn., decided February 24, 2012). According to the court, the only matters in dispute in this contract action were whether General Mills’ May 27, 2008, letter informing the defendant that it had incurred losses of at least $1.4 million constituted a “written notice of claim” under Minnesota’s prejudgment interest statute and the appropriate interest rate to apply. While the letter indicated that costs could continue to accrue and did not include evidentiary support, it did demand prompt payment of $1.4 million “in full settlement of this…
A federal court in New York has dismissed, for lack of jurisdiction, the claims filed by numerous organic farming interests seeking a declaration that they are not infringing Monsanto’s genetically modified (GM) seed patents, the patents are invalid and unenforceable and the company would not be entitled to remedies against them. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., decided February 24, 2012). According to the court, because Monsanto has an express policy not to bring infringement actions against a farmer whose fields have trace amounts of its seed or traits “as a result of inadvertent means,” such as seed drift, cross-pollination or commingling with tainted equipment, the plaintiffs are unable to establish a substantial controversy or an injury traceable to the defendant. While Monsanto has brought 144 infringement actions against farmers over a 13-year period, the court found this insignificant given the 2 million farms currently…
Counsel for five current and former Illinois prison inmates has reportedly indicated that four expert witnesses are prepared to testify that the soy in the inmates’ prison diets caused them “irreparable, actual harm,” and thus their litigation against the state, prison wardens and nurses will proceed. Harris v. Brown, No. 07-03225 (C.D. Ill., filed August 16, 2007). According to a news source, the inmates are seeking an order to stop the Illinois Department of Corrections from using soy in the food prisoners eat; the plaintiffs claim they consumed up to 100 grams of soy protein daily despite Food and Drug Administration recommendations that soy intake not exceed 25 grams. Claiming violations of their Eighth Amendment rights to be free of cruel and unusual punishment, the plaintiffs are being represented by the Weston A. Price Foundation, which opposes soy foods and has backed similar lawsuits in other states. The foundation claims that…
Starbucks Corp. has filed its response in the Second Circuit Court of Appeals in a dispute over tip sharing, asking the court to affirm the district court’s grant of summary judgment in its favor. Lawrence v. Starbucks Corp., No. 11-3199 (2d Cir., brief filed February 22, 2012). Additional information about related litigation involving Starbucks baristas and shift supervisors appears in Issue 256 of this Update. The company asserts that the district court correctly held that (i) New York labor law does not grant plaintiff assistant store managers the right to participate in a tip pool, and Starbucks did not “demand,” “accept,” or “retain” their tips; (ii) Starbucks’ policy of allowing only baristas and shift supervisors to share tips is consistent with state law; and (iii) assistant store managers exercise control over their subordinates’ employment status and are thus “agents” prohibited from sharing tips under state law.
The Food and Drug Administration (FDA) and the Natural Resources Defense Council (NRDC) have agreed to a timeline for the production of material NRDC requested under the Freedom of Information Act (FOIA) involving bisphenol A (BPA) in food packaging and food contact materials. NRDC v. FDA, No. 11-8662 (S.D.N.Y., stipulation and order filed February 21, 2012). Additional information about the litigation appears in Issue 420 of this Update. The agreement narrows the request, limits the FDA offices required to conduct searches for responsive records and specifies the format in which the records will be produced. It also creates a timeline for FDA to produce internal material, material involving other agencies and a list of withheld documents. Any further proceedings in the litigation NRDC filed to force the agency to respond to its FOIA request are stayed until further order of the court on or after August 22, 2012. NRDC is…
A federal court in South Carolina has reportedly determined that a tomato grower seeking damages from the U.S. Food and Drug Administration (FDA) allegedly caused by a 2008 tomato recall that followed a Salmonella outbreak which was ultimately found not to be linked to contaminated tomatoes, may pursue negligence claims against the agency. Williams Farms Produce Sales, Inc. v. United States, No. 11-01399 (D.S.C., order entered February 23, 2012). Further details about the case appear in Issue 398 of this Update. The court has apparently dismissed claims of defamation, slander of title, product/commercial disparagement, unconstitutional taking, and violation of unfair trade practices law. See Law360, February 23, 2012.
A federal magistrate judge in Illinois has stayed a putative class action, the fourth of five brought against The Quaker Oats Co., alleging that the company deceives consumers by representing that its granola and oatmeal products are “heart healthy,” “wholesome,” and a “smart choice made easy,” when they actually contain trans fat. Askin v. The Quaker Oats Co., No. 11-111 (N.D. Ill., order entered February 15, 2012). The named plaintiff, a New York resident, filed his complaint on behalf of a putative nationwide class after other similar suits were filed in California, where they are proceeding as one consolidated action. He unsuccessfully sought to consolidate all of the action in Illinois before a multidistrict litigation court. Quaker and the intervening plaintiffs, who filed the California actions, asked the court to dismiss the Illinois action under the first-to-file rule, and the court denied the request despite finding that the suits are…
The Center for Environmental Health has filed a notice of violation under California’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65) to inform the manufacturer and retailers of several carbonated soft drinks containing caramel coloring that it will file a citizen enforcement lawsuit against them for violating Prop. 65’s warning provision since January 7, 2012, with respect to 4-methylimidazole (4 MEI). According to the notice, “No clear and reasonable warning is provided with these products regarding the carcinogenic hazards associated with 4-MEI exposure.” The notice also states that the lawsuit will be filed unless each “alleged violator enters into a binding written agreement to remedy the violations alleged herein by: (1) recalling products already sold; (2) reformulating such products to eliminate the 4-MEI exposure or taking appropriate measures to otherwise comply with Proposition 65; and (3) paying an appropriate civil penalty based on the factors enumerated” in California’s Health…
A Georgia resident has filed a complaint in federal court on behalf of a statewide class of consumers allegedly misled about the purported health benefits of POM Wonderful’s pomegranate products. Templeton v. POM Wonderful, LLC, No. 12-53 (S.D. Ga., filed February 16, 2012). According to the complaint, the company promotes its products “as having special health benefits, including but not limited to, the prevention[,] mitigation, and/or treatment of the following: (a) Atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer, (d) Erectile Function; (e) Cardiovascular Disease; (f) Reduce LDL Cholesterol; (g) and other age-related medical conditions.” Citing investigations by the National Advertising Division of the Council of Better Business Bureaus, the U.K.’s Advertising Standards Authority, U.S. Food and Drug Administration, and U.S. Federal Trade Commission, the plaintiff claims that these promotions are not substantiated by medical evidence. Alleging violations of the Georgia Uniform Deceptive Trade Practices Act and unjust enrichment, the plaintiff…
