A consumer has filed a putative class action alleging that Trader Joe's Co. sells raw poultry products that contain more retained water than indicated on the package. Webb v. Trader Joe's Co., No. 19-1587 (S.D. Cal., removed August 23, 2019). The complaint alleges that the retained water in some packaged poultry was found to be as much as 16% but labeled as a maximum of 5%. "Poultry products are sold by weight," the plaintiff argues. "Excess Retained Water in the product unlawfully increases the price the consumer pays and decreases the value of the product, cheating the consumer." The plaintiff asserts eight causes of action, including theft by false pretenses and unjust enrichment, and seeks class certification, restitution and damages.
Category Archives U.S. Circuit Courts
Citing a Consumer Reports piece investigating the arsenic content of several bottled-water brands, three plaintiffs have filed a lawsuit alleging that Whole Foods Market Inc. sells water that "has some of the highest arsenic levels of any bottled water presently being marketed in the United States, with some bottles exceeding the maximum arsenic contamination levels allowed by federal and state law." Berke v. Whole Foods Mkt. Inc., No. 19-7471 (C.D. Cal., filed August 28, 2019). The plaintiffs argue that Whole Foods charged a "hefty premium," "especially as compared to tap water," for a product it marketed as "some of the purest and most pristine water available in the U.S." while it knew "that the product has been universally contaminated with arsenic, with some bottles containing the industry's highest levels of arsenic for many years." The plaintiffs seek class certification damages, restitution and attorney's fees for alleged violations of California and…
A California federal court has dismissed a lawsuit alleging that Clif Bars misled consumers into believing their bars contained white chocolate, but it granted the plaintiffs leave to amend their allegations. Joslin v. Clif Bar & Co., No. 18-4941 (N.D. Cal., entered August 26, 2019). The court first found that the plaintiffs failed to show that they had standing to pursue injunctive relief because they did "not allege a cognizable threat of future harm," then turned to the issue of white chocolate on the label. "Accepting Plaintiffs’ allegations as true, and drawing all reasonable inferences in favor of Plaintiffs, the Court concludes Plaintiffs’ allegations are not sufficient to show members of the public are likely to be deceived," the court ruled. However, it was "not convinced at this stage that amendment would be futile," so it granted leave to amend.
The Center for Food Safety and Center for Environmental Health have filed a lawsuit seeking to compel the U.S. Food and Drug Administration (FDA) to promulgate rules for a program to improve foodborne-illness detection as required under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Azar, No. 19-5168 (N.D. Cal., filed August 19, 2019). The organizations allege that FDA failed to create a laboratory accreditation program "whereby an increased number of accredited laboratories following model standards developed by the agency would be in place 'to rapidly detect and respond to foodborne illness outbreaks and other food-related hazards.'" "FDA’s failure to implement FSMA’s laboratory accreditation provisions by their statutory deadlines is an abdication of the agency’s fundamental responsibilities," the complaint asserts. "Moreover, the agency’s unlawful withholding and unreasonable delay is putting millions of lives at continued risk from contracting foodborne illnesses, contrary to Congress’s commands. This lawsuit therefore…
A plaintiff has filed a putative class action alleging Tillamook County Creamery Association misleadingly markets its products as sourced from cows in Tillamook County. Bohr v. Tillamook Cty. Creamery Ass'n, No. 19-36208 (Ore. Cir. Ct., Multnomah Cty., filed August 19, 2019). The complaint alleges that consumers "increasingly seek out and are willing to pay more for products that they perceive as being locally and ethically sourced—better for the environment, more humane." Tillamook allegedly sought to capitalize on this consumer preference by advertising its products as "made with four ingredients, patience, and old-fashioned farmer values in Tillamook, Oregon," despite producing its cheese and ice cream with ingredients obtained from "the largest and most industrialized dairy factory farm in the country," a "complex of cement-floored production facilities and barren dirt feedlots, where cows are continuously confined, milked by robotic carousels, and afflicted with painful udder infections." The complaint cites a "recent consumer…
A California federal court has dismissed a putative class action complaint alleging that Danone U.S. Inc.'s So Delicious Coconut Milk is misleadingly marketed as healthful. Andrade-Heymsfield v. Danone U.S. Inc., No. 19-0589 (S.D. Cal., entered August 14, 2019). Danone argued that the challenged statements were not health or nutrient content claims, and the court assessed each statement. "The 'Maximum Calcium Absorption' statement . . . is a permissible structure/function claim as permitted under the [U.S. Food and Drug Administration's (FDA's)] own guidance to its regulations. FDA guidance even lists 'calcium helps build strong bones' as a permitted structure/function claim, not a health claim," the court found. Similarly, "Nutrition in Every Sip" is a "permissible structure/function claim" and "is not made in connection with an explicit or implicit claim or statement about a nutrient as required by the regulation for implied nutrient content claims such as the cited example, 'healthy, contains…
A D.C. court has dismissed Bellion Spirits LLC's lawsuit aiming to compel the Alcohol and Tobacco Tax and Trade Bureau (TTB) to permit the company to market its products as containing "NTX, a proprietary blend of ingredients that they contend mitigates alcohol's damage to DNA." Bellion Spirits LLC v. United States, No. 17-2538 (D.D.C., entered August 1, 2019). TTB denied Bellion's application to make the health claims because it purportedly found inadequate substantiation after consulting with the U.S. Food and Drug Administration (FDA). Bellion filed suit, arguing that TTB could not work with FDA without express statutory authority. The court disagreed, finding that TTB has exclusive regulatory authority to make final decisions on alcohol, but nothing prohibits the agencies from consulting with each other. The court also dismissed Bellion's First Amendment argument, which maintained that its claims about NTX are true; the court noted that it must be deferential to…
A California federal court has denied Clif Bar & Co.'s motion to dismiss a putative class action alleging that its Clif bars contain high levels of sugar but are misleadingly marketed as healthful. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., entered August 20, 2019). The court disagreed with Clif's argument that the plaintiff's claims were preempted by federal laws on the display of nutritional information on food packaging, finding the provisions "of no moment here because plaintiffs are not challenging the nutrition information on the Clif bars' label." Further, the court declined to consider whether a "reasonable consumer would know that the challenged products contained added sugars" given the flavor names—including Chocolate Chip, Chocolate Brownie and Iced Oatmeal Cookie—because "the motion to dismiss stage is not the place to decide these questions of fact." "Clif is alleged to have marketed its bars using words and imagery designed…
A Massachusetts federal court has dismissed a lawsuit alleging that Post Consumer Brands misleads consumers by implying that Honey Bunches of Oats is primarily sweetened with honey rather than sugar, brown sugar and corn syrup. Lima v. Post Consumer Brands LLC, No. 18-12100 (D. Mass., entered August 13, 2019). Post argued that "honey" describes "one of the cereal's primary recognizable flavors" in addition to being a sweetener. "Plaintiffs seemingly understand that honey is both a sweetener and a flavoring agent," the court found, "yet they do not explain why they concluded that the word honey and the associated imagery necessarily meant that honey was the primary sweetener, rather than referring to the flavor of the cereal." Further, the court found that the packaging "makes no objective representation about the amount of honey, leaving the cereal's accurate list of ingredients as the only unambiguous representation of the amount of honey relative…
A New York federal court has granted Crystal Farms Refrigerated Distribution Co.'s motion to dismiss a putative class action alleging that the packaging of Diner's Choice mashed potatoes misleads consumers by featuring "Made with Real Butter" on the front despite containing both butter and margarine. Reyes v. Crystal Farms Refrigerated Distrib. Co., No. 18-2250 (E.D.N.Y., entered July 26, 2019). The court dismissed the allegations relying on the "butter" representation because the statement "is not misleading. Defendant's mashed potatoes contain butter. [] To the extent that including a label on a mashed-potatoes package indicating that the product is 'made with real butter' may create confusion as to whether the mashed potatoes also contain margarine, such confusion is sufficiently dispelled by the ingredients label on the back of the package, which states twice—and once in bold font set apart from the rest of the items listed in the ingredients label—that the product…
