Ruling that the plaintiff’s claims are preempted by the Organic Foods Production Act (OFPA), a federal court in California has dismissed a putative class action alleging Danone North America's Horizon Organic milk is not organic because it contains DHA. Brown v. Danone N. Am. LLC, No. 17-7325 (N.D. Cal., entered May 1, 2018). Noting that the Ninth Circuit has not considered whether the OFPA preempts state law challenges that "call into question whether organic products were properly certified as organic,” the court sided with decisions from the Eighth and Second Circuits holding that such challenges are preempted. “The labels clearly state that the milk is 'organic' and that the milk contains DHA, and the labels bear the United States Department of Agriculture (USDA) organic certification logo," the court found. "The USDA database publicly shows that Horizon Organic milk with DHA is currently certified organic by the USDA, and has been…
Category Archives U.S. Circuit Courts
An Arizona woman has sued Red Lobster Hospitality alleging that she contracted E. coli from eating a salad at a Red Lobster in Phoenix. Styles v. Red Lobster Hospitality, LLC, No. 18-1361 (D. Ariz., filed May 1, 2018). The plaintiff alleged she ate the salad, which contained romaine lettuce, on March 23, 2018, and became ill around March 29, 2018. After she was hospitalized, she tested positive for E. coli O157:H7 bacteria, which has been linked to an outbreak of E. coli from romaine lettuce grown near Yuma, Arizona. Claiming breach of warranty, strict liability and negligence, the plaintiff seeks damages and attorney’s fees. A similar lawsuit was filed against Panera Bread Co. in April 2018.
Plaintiffs in California and New York have filed a putative class action alleging Clif Bar & Co. “omits, intentionally distracts from, and otherwise downplays" the "high added sugar content” of Clif Classic and Clif Kid bars. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed April 19, 2018). The complaint asserts that the bars contain high amounts of added sugar—“a chronic liver toxin”—and alleges that excess sugar consumption can lead to several conditions, including metabolic syndrome, Type 2 diabetes, obesity, high triglycerides and hypertension. The plaintiffs allege that Clif “employs a strategic marketing campaign intended to appeal to customers interested in healthful foods in order to increase sales and profits, despite that the high-sugar bars are detrimental to health.” By emphasizing “nutritious” and “organic” ingredients as well as the lack of high-fructose corn syrup and genetically modified organisms, the company allegedly fails to disclose that Clif Classic and…
The maker of Jack Daniel’s has filed suit against two Texas companies alleging they infringed the Tennessee whiskey’s trademark and trade dress by selling a line of whiskies in similarly shaped bottles with similar labeling. Jack Daniel’s Props., Inc., v. Dynasty Spirits, Inc., No. 18-2400 (N.D. Cal., filed April 20, 2018). The complaint alleges that Tennessee whiskey has been sold under the Jack Daniel’s mark “continuously since 1875, except during Prohibition” and is sold in a “square bottle with angled shoulders, beveled corners, and a ribbed neck, a black cap, a black neck wrap closure with white printing bearing the OLD NO. 7 mark, and a label with a white on black color scheme bearing the JACK DANIEL’S mark depicted in arched lettering at the top of the label [] and the word ‘Tennessee’ depicted in script.” The competitor whiskies “all feature a square bottle with angled shoulders, beveled corners…
A vintner has filed a lawsuit alleging Colorado's “wine development fee,” charged to wholesalers, is an unconstitutional excise tax. Vineland Corp. v. Colorado, No. 18-30199 (Colo. D.C., filed April 24, 2018). Since 1990, Colorado has imposed a 10-year renewable excise tax of one cent per liter on all vinous liquors sold in the state. In 1992, the state passed the Taxpayers Bill of Rights (TABOR), which mandated advance voter approval for extension of expiring taxes; in 1997, the legislature amended the 1990 act, renaming the excise tax a “wine development fee.” The plaintiff seeks declaratory judgment that the fee is “an impermissible attempt to extend an expiring tax without voter approval, and that this attempt to rename an excise tax surcharge [] without such voter approval is a violation of TABOR.” Further, the plaintiff seeks injunctive relief, attorney’s fees and a refund of all fees paid in the past four fiscal…
Kellogg Co. faces a putative class action alleging its Salt & Vinegar Pringles are mislabeled as containing “No Artificial Flavors” because the nutrition label identifies two artificial ingredients. Marotto v. Kellogg Co., No. 18-3545 (S.D.N.Y., filed April 20, 2018). The complaint asserts that although both sodium diacetate and malic acid can occur in nature, the sodium diacetate used in the product is “a synthetic industrial chemical manufactured in a chemical refinery from carbon monoxide and industrial methanol" while the malic acid is “d-1-malic acid . . . manufactured in petrochemical plants from benzene or butane.” Alleging unfair and deceptive business practices, false advertising and misrepresentation, the plaintiff seeks class certification, corrective advertising, damages and attorney’s fees. In March 2018, a federal court in California refused to dismiss a similar lawsuit against Kellogg, finding the plaintiffs had adequately pleaded reasonable customer confusion.
A Missouri federal court has denied Dr Pepper Snapple Group Inc.’s motion to dismiss a putative class action alleging Canada Dry Ginger Ale is falsely labeled because it does not contain ginger. Webb v. Dr Pepper Snapple Grp. Inc., No. 17-0624 (W.D. Mo., entered April 25, 2018). The plaintiff alleged that although the labeling, packaging and marketing of the product includes the statement “Made from Real Ginger,” independent laboratory testing found no detectable ginger in the beverage. The lawsuit echoes similar putative class actions filed in California. The Missouri court rejected all of Dr Pepper Snapple Group’s arguments, finding the plaintiff had adequately pleaded each of the seven counts alleged, including violation of the Missouri Merchandising Practices Act, fraud and intentional misrepresentation.
A New Jersey woman has filed a lawsuit alleging Panera Bread Co. sold her salad greens contaminated with E. coli, causing her to develop hemolytic uremic syndrome after she consumed the meal. Fraser v. Freshway Foods, Inc., No. 18-7734 (D.N.J., filed April 16, 2018). Filed against Panera and its lettuce supplier Freshway Foods Inc., the complaint asserts that Panera sold contaminated lettuce sourced from Yuma, Arizona, which the Centers for Disease Control and Prevention (CDC) has linked to an E. coli outbreak. Alleging the lettuce was “defective and unreasonably dangerous” in violation of the New Jersey Products Liability Act, the plaintiff seeks damages for physical and mental pain and suffering, loss of enjoyment of life, medical expenses and attorney’s fees.
A consumer has filed a putative class action alleging the labels for Crystal Farms Refrigerated Distribution Co.'s Diner’s Choice mashed potatoes assert that the products are made with real butter and fresh whole potatoes while the products contain margarine and preservatives. Reyes v. Crystal Farms Refrigerated Distrib. Co., No. 18-2250 (E.D.N.Y., filed April 16, 2018). The complaint alleges that despite the prominent package labeling, the products’ nutrition labels list margarine as the third ingredient, misleading consumers who expect the potatoes to contain only butter. The complaint also asserts that “fresh mashed potatoes have a shelf life between 7 and 10 days. The Products’ 3-month shelf life is due to artificial chemical preservatives including sodium benzoate, disodium pyrophosphate, potassium sorbate and sodium bisulfite.” Alleging violations of New York’s General Business Law, negligent misrepresentation and fraud, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
A consumer has filed a putative class action alleging Trader Joe’s Co.'s two-ingredient fruit bars are deceptively labeled with collective terms such as “apples” on the ingredient list instead of the specific name for an apple-based ingredient. Jamison v. Trader Joe’s Co., No. 18-2216 (E.D.N.Y., filed April 14, 2018). The plaintiff asserts that the use of a collective term misleads consumers into believing that the products are made from whole, unprocessed fruit, which would require “an additional binding ingredient such as a gel, pectin, juice concentrate or syrup.” A solid bar made without a binding agent, the complaint asserts, would require fruit powder and water, which are not listed on the product labels. Alleging negligent misrepresentation, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
