The Second Circuit has reversed a lower court’s dismissal of a lawsuit alleging that Kellogg Co. misleads consumers by marketing its Cheez-Its as “made with whole grain.” Mantikas v. Kellogg Co., No. 17-2011 (2nd Cir., entered December 11, 2018). The lower court had agreed with Kellogg that the “made with whole grain” label was factually accurate and would not mislead reasonable consumers, and it dismissed the complaint for failure to state a claim. “Although the district court is correct that an allegedly misleading statement must be viewed ‘in light of its context on the product label or advertisement as a whole,’ [] the court misapplied that principle to Plaintiffs’ claims in this case,” the court held. “Plaintiffs’ core allegation is that the statements ‘Whole Grain’ and ‘Made With Whole Grain’ are misleading because they communicate to the reasonable consumer that the grain in the product is predominantly, if not entirely,…
Category Archives U.S. Circuit Courts
An Illinois federal court has dismissed a putative class action alleging that Fannie May Confections Brands Inc. underfills its Mint Meltaways and Pixies candy boxes. Benson v. Fannie May Confections Brands Inc., No. 17-3519 (N.D. Ill., E. Div., entered December 10, 2018). The court previously dismissed the plaintiffs’ complaint on the grounds that it provided “bare-bones” factual allegations and failed to allege a claim that would not be preempted by the federal Food, Drug and Cosmetic Act. The court dismissed the plaintiffs’ argument that Fannie May’s 14-ounce boxes contained less slack fill than its seven-ounce boxes, the subject of the complaint. “This type of comparison tells the Court nothing about the slack-fill in the containers in question,” the court found. “The fact that a different container is filled to a different level is not only unsurprising, it is what one would expect.” The court compared the plaintiffs’ allegations with those…
A California federal court has partially certified a class of consumers that alleges Ocean Spray Cranberries Inc. misled them into believing that their products were free of artificial flavoring but contained malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered November 29, 2018). The court first found that the proposed class met the requirements of typicality, numerosity, commonality and adequacy of the class representative before focusing on the predominance issue for the breach of express warranty and breach of implied warranty allegations. The plaintiff asserted that damages for those allegations could be determined with a survey that apparently identified the price premium that consumers would pay based on the "no artificial flavors" representation. Ocean Spray argued that the "proposed damages model is fatally flawed" because of the use of "diverse comparative products, retailing concepts, juice percentages and an irrelevant specific time period," and the court agreed,…
A California federal court has denied a motion to dismiss a lawsuit alleging that Sanderson Farms Inc. misleads consumers about the presence of antibiotics in its chickens. Friends of the Earth v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered December 3, 2018). The plaintiffs—several advocacy groups—assert that Sanderson's marketing misleads consumers into believing that its chickens are raised without antibiotics, while Sanderson argues that its labeling, advertisements and website communicate to consumers that the chicken products they purchase do not contain antibiotics. "Sanderson argues its infographic on its '100% Natural' webpage contains only true statements: it shows what ingredients are not added to the chicken and says nothing about antibiotic use or nonuse," the court stated. "Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded. As…
In a summary order, the U.S. Court of Appeals for the Second Circuit has affirmed a lower court's judgment in favor of Monini North America in a lawsuit alleging that consumers were misled about the truffle content of the company's truffle-flavored oil. Jessani v. Monini N. Am. Inc., No. 17-2504 (2nd Cir., entered December 3, 2018). "According to plaintiffs, truffles are the most expensive food in the world," the court stated. "In this context, representations that otherwise might be ambiguous and misleading are not: it is simply not plausible that a significant portion of the general consuming public acting reasonably would conclude that Monini’s mass produced, modestly-priced olive oil was made with 'the most expensive food in the world.' [] This is particularly so given that the product’s ingredient list contains no reference to the word 'truffle' and the primary label describes the product only as being 'Truffle Flavored.' Accordingly,…
A consumer has alleged that Nuts 'N More LLC's White Chocolate Peanut Spread does not contain the amount of milkfat required to meet the U.S. Food and Drug Administration (FDA) definition of "white chocolate." Morrison v. Nuts 'N More LLC, No. 18-11192 (S.D.N.Y., filed November 30, 2018). According to the complaint, FDA requires white chocolate to contain "not less than 3.5 percent by weight of milkfat," but the white chocolate spread does not contain any dairy ingredients. "Because there is no additional milkfat to supplement the Product to meet FDA definition of white chocolate, the Product cannot be marketed as white chocolate and thus must be deemed imitation white chocolate," the plaintiff asserts. She alleges that she and other consumers paid a premium for what she believed to be white chocolate "and received an inferior Product than what was represented to them by Defendant." For alleged violations of New York…
The Animal Welfare Institute (AWI) has filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) has failed to act on the organization's 2014 petition seeking certification for labeling claims about animal welfare and environmental stewardship during the meat and poultry production process. Animal Welfare Inst. v. USDA, No. 18-2621 (D.D.C., filed November 14, 2018). AWI's petition asserted that meat and poultry producers market food products as "humanely raised," made with "sustainable agricultural products," "raised in a stress free environment" and other similar claims despite allegedly exposing animals to "intensive confinement, barren and stressful housing conditions, and painful mutilations in order to increase production." AWI argues for the establishment of a certification program to verify marketing claims about animal welfare. According the complaint, USDA has not yet taken action on AWI's petition, allegedly resulting in an "unreasonable delay" in violation of the Administrative Procedures Act.
A woman has filed a putative class action alleging that FGF Brands (USA) Inc. misleads consumers by falsely marketing Stonefire Naan as baked in a tandoor oven. Friend v. FGF Brands (USA) Inc., No. 18-7644 (N.D. Ill., E. Div., filed November 16, 2018). Naan requires a "labor-intensive cooking process," the complaint asserts, and the plaintiff "believed that the Mislabeled Naan was baked in a tandoor oven, in small batches by hand, and did not involve the conventional, automated, and commercial methods of baking bread." The complaint cites FGF's patents, which purportedly show that the naan "is mass produced on a conveyor belt in a gas-heated commercial oven designed by Defendants to overcome the impracticalities of using a tandoor oven to mass-produce products." The plaintiff alleges violations of Illinois consumer-protection law along with fraudulent concealment and unjust enrichment, and she seeks class certification, corrective advertising, restitution, attorney's fees and damages.
Plaintiffs represented by the same plaintiff's firm have filed lawsuits alleging that companies mislead consumers by labeling their foods as flavored naturally despite containing malic acid. Lepiane v. Utz Quality Foods LLC, No. 18-2659 (S.D. Cal., filed November 20, 2018); Augustine v. Talking Rain Beverage Co., No. 18-2576 (S.D. Cal., filed November 9, 2018). The plaintiffs who filed against Utz Quality Foods allege that the company's Dirty Salt & Vinegar Potato Chips are labeled as containing "no artificial flavors" but list malic acid as an ingredient. "This type of 'malic acid' is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts," the complaint argues. The complaint against Talking Rain Beverage Co. makes identical allegations. Both complaints allege violations of California consumer-protection statutes and seek…
A consumer has filed a putative class action alleging that Reed's Inc. misleads consumers by labeling its Virgil's Sodas as made with "natural ingredients" and "no preservatives" despite containing citric acid. Mason v. Reed's Inc., No. 18-10826 (S.D.N.Y., filed November 19, 2018). The complaint asserts that citric acid "is a synthetic compound" "usually produced from certain strains of the mold Aspergillus niger" and "the application of chemical solvents such as sulfuric acid." The plaintiff alleges that the company's "misrepresentations deceive consumers into thinking they are receiving healthier and 'natural' soda, when they are not." "Consumers cannot discover the true nature of the Products from reading the label," the plaintiff argues. "Discovery of the true nature of the content of the Products requires knowledge of chemistry that is not available to the average reasonable consumer." She seeks class certification, an injunction requiring "proper, complete, and accurate labeling of the products," damages…
