A federal court has denied Lifeway Foods’ motion to dismiss a putative class action alleging the company fraudulently marketed its kefir beverage as 99 percent lactose-free despite containing 4 percent lactose. Block v. Lifeway Foods, No. 17-1717 (D.N. Ill., entered September 6, 2017). "[I]n some other cases, consumers have brought consumer fraud claims against food manufacturers based on discrepancies between the quality of the food and the manufacturer’s representations that are so minor as to be immaterial," the court noted. "[The plaintiff's] allegation that Lifeway’s plain, low-fat kefir contains 4%—instead of less than 1%—lactose may seem on its face to constitute a similarly immaterial discrepancy. But [the plaintiff] alleges that he purchased Lifeway’s kefir because it is nearly lactose-free and he wanted the health benefits that come from not consuming lactose. Products with 4% lactose—such as regular milk—are anything but lactose-free." The court dismissed two breach-of-warranty claims, noting that a…
Category Archives U.S. Circuit Courts
A federal court has approved the settlement agreement in a class action against Quorn Foods, which has agreed to warn consumers that its products contain mold. Birbrower v. Quorn Foods, No. 16-1346 (C.D. Cal., entered September 1, 2017). Under the agreement, the labels will state, “Mycoprotein is a mold member of the fungi family. There have been rare cases of allergic reactions to products that contain mycoprotein.” The Center for Science in the Public Interest was not a party to the suit but filed documents stating it would object to any settlement that did not include disclosure and allergy warnings. The settlement does not preclude "any claims for personal injuries for those customers who may have suffered adverse reactions from mold allergies after consuming Quorn products,” the agreement notes.
The U.S. Court of Appeals for the Tenth Circuit has overturned a lower court's dismissal of a coalition of advocacy groups' lawsuit challenging the constitutionality of Wyoming's statute supplementing criminal and civil trespass laws with additional penalties when the perpetrators "collect resource data." W. Watersheds Project v. Michael, No. 16-8083 (10th Cir., entered September 7, 2017). The statutes at issue barred individuals from trespassing on "open land for the purpose of collecting resource data," which is data related to "air, water, soil, conservation, habitat, vegetation or animal species." After the groups filed their challenge, Wyoming amended the statutes to remove "open lands" and redefine "collect," and the district court dismissed the lawsuit on the grounds that the amended statutes did not implicate protected speech. The appeals court disagreed, finding that a subsection of the statute that barred collecting data on land "adjacent or proximate to private property" could affect protected…
A consumer has filed a projected class action alleging Boar's Head Provisions Co. Inc. misleadingly markets its cheeses as "natural" despite containing genetically modified organisms (GMOs). Forsher v. Boar's Head Provisions Co. Inc., No. 17-4974 (N.D. Cal., filed August 25, 2017). The complaint asserts that GMOs are "not natural" and that "consumers do not expect [GMOs] to be present in foods labeled 'natural'"; further, "reasonable consumers do not believe there are any differences between foods that are labeled 'natural' and those that are labeled 'organic.' Reasonable consumers believe that 'organic' foods do not contain GMOs, and that foods labeled 'natural' are likewise free of such substances." The plaintiff seeks an injunction, restitution, damages and attorney's fees for alleged violations of state consumer-protection statutes as well as unjust enrichment and intentional misrepresentation.
The estate of Thelonious Monk has alleged that North Coast Brewing, maker of “Brother Thelonious Belgian Style Abbey Ale,” violated the estate's trademark and publicity rights. Monk v. North Coast Brewing Co. Inc., No. 17-5015 (N.D. Cal., filed Aug. 29, 2017). According to the complaint, the estate verbally granted the brewer the right to use Monk’s name, image and likeness “for the limited purpose of marketing and distributing” the ale in exchange for the brewer’s agreement to donate a portion of the profits to the Thelonious Monk Institute of Jazz at the University of California, Los Angeles, but later revoked the rights in 2016. The estate alleges North Coast has exceeded its rights by using the musician’s name or likeness on other merchandise, including cups, hats, hoodies or posters. Alleging trademark infringement, right of publicity and unjust enrichment, the estate seeks an injunction, profits attributable to the alleged violations, damages…
A federal court has granted the U.S. Department of Commerce's motion for summary judgment in a lawsuit aiming to block implementation of the Seafood Import Monitoring Program, which will require importers to document the catch-to-table distribution chain. Alfa Int’l Seafood, Inc. v. Sullivan, No. 17-0031 (D.D.C., entered August 28, 2017). A group of seafood processing, distribution and retail companies argued that the agency violated federal law in promulgating the rule, alleging it was issued without proper authority or supporting evidence. Several environmental groups previously sought to intervene in the lawsuit to defend the rule, but the court denied their motion. The court found for the defendants on all issues, finding that Commerce's authority is broader than the plaintiffs asserted. The plaintiffs argued that the U.S. Food and Drug Administration has exclusive regulatory authority over food labeling, but the court pointed to other relevant authorities that can affect labeling, including the…
Dollar General Corp, Moran Foods LLC and Krasdale Foods, Inc. have filed lawsuits alleging that the makers of Bumble Bee, StarKist and Chicken of the Sea illegally conspired to fix prices for their products, echoing ongoing litigation alleging similar facts. Dollar General Corp. v. Bumble Bee Foods LLC, No. 17-1744 (S.D. Cal., filed Aug. 29, 2017); Moran Foods LLC v. Bumble Bee Foods LLC, No. 17-1745 (S.D. Cal., filed Aug. 29, 2017); Krasdale Foods, Inc. v. Bumble Bee Foods LLC, No. 17-1748 (S.D. Cal., filed Aug. 30, 2017). The plaintiffs seek compensatory damages and attorneys’ fees. Nine putative class actions and related individual cases alleging price-fixing by the tuna companies were consolidated in multidistrict litigation in December 2015.
In-N-Out Burgers has filed a lawsuit alleging consumers are likely to confuse Smashburger’s “Triple Double” hamburger with In-N-Out’s “Double-Double,” “Triple Triple” and “Quad Quad.” In-N-Out Burgers v. Smashburger IP Holder LLC, No. 17-1474 (C.D. Cal., filed August 28, 2017). In-N-Out asserts use of the marks “Double-Double” and “Triple Triple” since the early 1960s to designate hamburgers and cheeseburgers. The complaint alleges that In-N-Out is “widely known for providing variations of its menu items to customize orders” and that customers regularly mix the menu names "to form names to customize orders, including ‘Triple Double.’” Claiming trademark infringement, unfair competition and dilution under federal and state laws, In-N-Out seeks an injunction and damages. The chain has also filed a notice of opposition to Smashburger’s application for registration for a “Triple Double” mark, claiming priority, likelihood of confusion and dilution by blurring.
Following a delay of federal rules requiring restaurants, retailers and other foodservice establishments to post calorie counts, New York City has agreed to postpone enforcement of its comparable municipal codes until May 7, 2018, matching the implementation date of the federal rules. Nat’l Assoc. of Convenience Stores v. New York City Dep’t of Hygiene, No. 17-5324 (S.D.N.Y., stipulation filed August 25, 2017). The plaintiffs filed a lawsuit July 2017 to prevent the city from enforcing a municipal regulation requiring calorie and nutrition information to be posted in their establishments. The plaintiffs stipulated that they will “encourage” their members to comply with the municipal code “to the extent those provisions impose requirements that are identical to the requirements” of the Food, Drug and Cosmetic Act and U.S. Food and Drug Administration regulations. In addition, the parties agreed to delay arguments on the plaintiff’s motion for a preliminary injunction and the city’s motion…
The Center for Food Safety has filed a lawsuit seeking to compel the U.S. Department of Agriculture (USDA) to proceed with the studies and public comment required to implement the 2016 Federal Bioengineered Food Disclosure Standards Act. Ctr. for Food Safety v. Perdue, No. 17-4967 (N.D. Cal., filed August 25, 2017). Passed by Congress in 2016, the act will require food producers to disclose the presence of any genetically modified organisms (GMOs). The complaint contends that USDA has failed to conduct the studies required by the act to inform its rulemaking, including a specific Congressional mandate to study whether digital or electronic disclosures would be an acceptable alternative to package labeling. If the agency finds no significant barriers to consumer access, food manufacturers could provide a QR code, website link or toll-free number for disclosures. However, the complaint alleges that USDA missed the July 29, 2017, deadline for completion of…
