A New Jersey resident has reportedly filed a putative class action against General Mills, Inc., alleging that the company’s claims about the beneficial digestive health benefits of its Yo-Plus® yogurt products are false and misleading. Amin v. General Mills, Inc., No. 10-305 (D.N.J., filed January 19, 2010). According to a news source, the plaintiff alleges that the company’s own studies refute many of its health claims; he also cites insufficient-evidence findings by the National Advertising Division of the Council of Better Business Bureaus. The plaintiff seeks certification of a class of New Jersey residents who purchased the product since they were first sold in the state and alleges violations of the New Jersey Consumer Fraud Act and breach of express warranty. See Mealey’s Food Liability, February 2, 2010. In issue 333 of this Update, we discussed the decision of a federal court in Florida to certify a class action raising the…
Category Archives U.S. Circuit Courts
Two California residents have filed a false advertising complaint on behalf of themselves and a nationwide class of consumers against The Quaker Oats Co., alleging that the company falsely labels Chewy Granola Bars® as “0g trans fat” when they actually contain “dangerous amounts of artificial trans fat, a toxic product that causes cancer, diabetes, and heart disease, and is banned in an increasing number of United States and foreign jurisdictions.” Chacanaca v. The Quaker Oats Co., No. 10-502 (N.D. Cal., filed February 3, 2010). Represented by the same counsel and using the same graphics and allegations about natural and trans fats as a complaint filed a few days earlier against Kellogg involving its Nutri-Grain® bars, the plaintiffs allege violations of the Lanham Act, California’s statutory and common laws of unfair competition, and the California False Advertising Law and Consumer Legal Remedies Act. They seek to enjoin the alleged false marketing and…
Two California residents have filed putative class claims against the Kellogg Co. in a California federal court, alleging that the company misleads consumers by making health claims for its Nutri-Grain® bars and promoting some of its Keebler cookie products as containing 0 grams of trans fat. Higginbotham v. Kellogg Co., No. 10-255 (S.D. Cal., filed February 1, 2010). According to the complaint, which provides detailed information about the differences between natural saturated fats and artificial trans fat, including that the artificial fat “causes cardiovascular disease, type 2 diabetes, and cancer,” the trans fat content of Kellogg’s products renders them “dangerous and unfit for human consumption.” The plaintiffs seek to certify a class of “All persons who purchased, on or after January 1, 2000, one or more Kellogg products containing artificial trans fat for their own use rather than resale or distribution.” They allege false advertising under the Lanham Act, violations…
A federal court in California has denied the defendant’s motion to dismiss in a putative class action alleging false and misleading advertising for defendant’s “Tropicana Pure 100% Juice Pomegranate Blueberry Flavored Blend of 5 Juices from Concentrate with other Natural Flavors.” Zupnik v. Tropicana Prods., Inc., No. 09-6130 (C.D. Cal., decided February 1, 2010). Plaintiffs allege that the product label, which emphasizes the pomegranate and blueberry components of the product by image and size of type constitutes false or misleading advertising in violation of several state statutes. According to the complaint, consumers are misled into believing the juice is primarily pomegranate and blueberry juice when it is, in fact, mostly pear juice. Tropicana argued that the plaintiff lacked standing, her claims were expressly preempted by federal law, and they were not pleaded with particularity. The court disagreed, finding that because the plaintiff claimed she did not get what she paid…
The Department of Justice (DOJ) has filed a civil antitrust lawsuit against Dean Foods Co., claiming that the company’s 2009 acquisition of Foremost Farms USA’s Consumer Products Division “eliminates substantial competition between the two companies in the sale of milk to schools, grocery stores, convenience stores and other retailers in Illinois, Michigan and Wisconsin.” The attorneys general of these states joined the complaint. According to a Wall Street Journal report, this is the first such action DOJ has filed under the Obama administration. The complaint apparently seeks to undo the deal and require Dean Foods to notify the department at least 30 days before any future purchase of a milk processing operation. According to DOJ, the companies were the first and fourth largest in the region and their merger gave Dean Foods some 57 percent of the market for processed milk there. Local school districts evidently have fewer choices now…
A federal multidistrict litigation (MDL) court in Missouri has issued an order and opinion disposing of defendants’ motion that it reconsider its prior rulings refusing to dismiss some of the bisphenol A-related claims in the case on the basis of federal preemption and primary jurisdiction. In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided January 19, 2010). Details about the court’s prior ruling appear in issue 327 of this Update. The court also denied defendants’ motion to certify the issues for immediate interlocutory appeal. In its opinion, the court clarifies its holding allowing plaintiffs to proceed with their unjust enrichment claims, acknowledging that its prior holding may not have been clear. “The Court did not intend to suggest that all Plaintiffs automatically and necessarily have a valid claim for unjust enrichment. . . . [T]he Court cannot conclude that no purchaser can assert a claim…
A federal court in the District of Columbia has remanded to the D.C. Superior Court a lawsuit brought by the National Consumers League (NCL) against General Mills alleging that the company falsely misrepresents that Cheerios® “has drug-quality properties that would reduce total and ‘bad’ cholesterol levels when eaten.” Nat’l Consumers League v. General Mills, Inc., No. 09-01881 (D.D.C., decided January 15, 2010). The cereal maker removed the case to federal court claiming that it was removable either as a class action under the Class Action Fairness Act (CAFA) or under the court’s diversity jurisdiction. The NCL disclaimed Article III standing because it did not sustain any injury in fact, but was instead bringing the suit under the “private attorney general” provision of the D.C. Consumer Protection Procedures Act. This provision allows a person to bring an action on behalf of the general public to seek relief “from the use by…
A California court of appeal recently determined that the Federal Meat Inspection Act (FMIA) preempts point-of-sale or other warning labels on meat products under Proposition 65 (Prop. 65). Am. Meat Inst. v. Leeman, No. D053325 (Cal. Ct. App., decided December 22, 2009). In 2004, Whitney Leeman notified a number of meat processors and retailers in California that she intended to file a citizen suit against them alleging violations of Prop. 65 for their failure to provide warnings that their beef products contained dioxins and PCBs, chemicals known to the state to cause cancer or reproductive toxicity. The companies’ trade association filed a complaint seeking declaratory relief, and the trial court, finding implied, but not express, federal preemption, granted the association’s motion for summary judgment. The court of appeal focused for the most part on defining “labeling,” because Leeman argued that point-of-sale warnings do not constitute labeling under the FMIA, which contains…
Multidistrict litigation (MDL) plaintiffs who challenged claims that Tyson products were made from “chickens raised without antibiotics” have sought approval of a settlement reached with the company. In re: Tyson Foods Inc., Chicken Raised Without Antibiotics Consumer Litigation, MDL No. 1982 (D. Md., motion filed January 12, 2010). Under the terms of the settlement, Tyson will pay up to $5 million to three tiers of plaintiffs: those who can provide receipts (they can recover up to $50); those who can estimate how much they spent on the products, how often they purchased them and where the purchases were made (they can recover up to $10) and those who simply claim they purchased the product at least once and submit a claim for a $5 coupon instead of cash. Four named plaintiffs in the suits consolidated before the MDL court for pre-trial proceedings and four class members who were deposed will receive…
A federal court has certified class claims against General Mills alleging that the company’s advertising for its premium-priced Yo-Plus® yogurt violates the Florida Deceptive and Unfair Trade Practices Act because the product does not provide any digestive health benefits that cannot be obtained from eating normal yogurt. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., decided January 11, 2010). The named plaintiff claimed that the company’s ads and promotional materials convinced her to try the product and that she consumed it on a regular basis for about a year. She claimed that her digestive health was the same before, during and after eating Yo-Plus® and thus, the company’s claims for digestive health benefits beyond those provided by normal yogurt are false, misleading and likely to deceive the public. She also alleged breach of express warranty and sought to certify a class of “[a]ll persons who purchased YoPlus in the State…
