The U.S. Court of Appeals for the Seventh Circuit has rejected class certification and a settlement agreement in a lawsuit alleging Subway sells "Footlong" sandwiches that are sometimes shorter than 12 inches. In re: Subway Footlong Sandwich Mktg. & Sales Practices Litig., No. 16-1652 (7th Cir., entered August 25, 2017). “In their haste to file suit," the court noted, "the lawyers neglected to consider whether the claims had any merit. They did not.” Additional details about this case appear in Issues 468 and 487 of this Update. The court found that the parties established in early discovery that the raw dough sticks the chain uses for baked bread portions were uniform in weight and that variations in final length were “wholly attributable to the natural variability in the baking process.” In addition, meat and cheese toppings are standardized, “so the length of the bread has no effect on the quantity of food each…
Category Archives U.S. Circuit Courts
A California federal court has limited relief to monetary damages in a lawsuit alleging that Jelly Belly Candy Co. misleads consumers into believing its Sport Beans do not contain sugar because the term "evaporated cane juice" (ECJ) appears on the label instead. Gomez v. Jelly Belly Candy Co., No. 17-0575 (C.D. Cal., entered August 18, 2017). Additional details about the case appear in Issues 629 and 638 of this Update. The court found that to pursue California consumer-protection claims, the plaintiff must establish that she had no adequate remedy at law, but she failed to do so in an amended complaint. The only injury the plaintiff alleged was that she “lost money” because she purchased the product, the court stated, limiting her relief to that alleged loss. Issue 645
Red Bull GmbH has filed a notice of opposition with the Trademark Trial and Appeal Board (TTAB) alleging that a mark used by Bull By The Horns Fitness is too similar to its own name, mark and logo. Red Bull GmbH v. Bull By The Horns Fitness, No. 91236158 (TTAB, filed August 16, 2017). The fitness club applied for a mark that shows a man holding a sideways-facing charging bull, while Red Bull’s marks also show a sideways-facing charging bull. Red Bull argues that its mark has been extensively used in sports and fitness promotion and training services and opposes the application for likelihood of confusion, dilution and false suggestion of a connection. Issue 645
A California federal court will allow to proceed a suit alleging that Kellogg’s breakfast cereals and bars are unhealthy because of excess added sugars, finding that the labeling and packaging of 24 named products “contain at least one statement that is not preempted, non-misleading or puffery as a matter of law.” Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., entered August 10, 2017). The court rejected Kellogg’s argument that the company accurately disclosed the ingredients of its products and complied with U.S. Food and Drug Administration (FDA) labeling guidelines. The court also found that because FDA “expressly decided” not to set a level for sugar that would disqualify a product from making health or nutrient-content claims, any allegation that Kellogg’s product labeling was misleading because of a certain amount of added sugar was preempted by the Food, Drug and Cosmetic Act. However, the court refused to preempt a claim…
A California federal court has certified two classes alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misleadingly labeled its products as "extra virgin" and "imported from Italy." Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., entered August 24, 2017). Details on the court's denial of a motion to dismiss appear in Issue 550 of this Update. The court held that the question is whether the manufacturer “breached any legal obligation to take reasonable steps to ensure its oils meet the standards at least until the ‘best by’ date” on the bottle, a question that is subject to determination on a class-wide basis and predominates over any individual issues. Issue 645
Food & Water Watch has filed a lawsuit against the U.S. Department of Agriculture (USDA) and the Farm Service Agency seeking vacatur of agency decisions that guaranteed loans and allowed construction of a concentrated animal feeding operation (CAFO) in the Choptank River watershed on Maryland’s Eastern Shore. Food & Water Watch v. United States Dep’t of Agric., No. 17-1714 (D.D.C., filed August 23, 2017). The CAFO is located upstream from the Chesapeake Bay, where the U.S. Environmental Protection Agency and surrounding states have undertaken extensive agricultural pollution cleanup efforts. Among other allegations, the complaint asserts that USDA’s environmental assessment found that the CAFO’s density would conform to industry standards but that the actual density is nearly double those standards, resulting in higher-than-average waste concentration, air and water pollution. The plaintiff argues that the agencies (i) failed to consider adequate alternatives; (ii) failed to address biological resources, groundwater, surface water or…
A federal court has dismissed multidistrict litigation alleging that several brands' “100% Grated Parmesan Cheese” misled consumers because the products contained as much as 8.8 percent cellulose, finding that the claims were “doomed by the readily accessible ingredient panels on the products that disclose the presence of non-cheese ingredients.” In Re: 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., No. 16-5802 (N.D. Ill., entered August 24, 2017). Additional details about the litigation appear in Issues 595 and 606 of this Update. The court found the cheese's label was ambiguous, noting, “Although 100% Grated Parmesan Cheese might be interpreted as saying the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated. Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and…
A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…
The Trademark Trial and Appeal Board (TTAB) has affirmed a refusal to grant Empire Technology Development a trademark for “coffee flour,” finding “clear evidence of generic use” of the term. In re Empire Tech. Dev. LLC, Serial No. 85876688 (TTAB, entered August 3, 2017). The company, which created the flour from ground coffee cherry skins, pulp and pectin, claimed first use of the mark in 2012. TTAB found that Empire “failed to develop and promulgate a generic term other than ‘coffee flour’ and to educate the public to use some other name” and used coffee flour as a generic term in its advertising materials and in media coverage. To allow trademark protection for a generic term, even when identified with a first user, would grant the owner a monopoly because a competitor could not describe the product as what it is, the board said. Moreover, the board said Empire’s failure…
The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office has reversed a refusal to register “The Cannibal” as a mark for beer to Iron Hill Brewery, finding little likelihood of confusion between the beer and a restaurant called “The Cannibal Beer & Butcher.” In re Iron Hill Brewery, No. 86682532 (TTAB, entered July 28, 2017). The board found that Cannibal Beer & Butcher failed to show that consumers would be confused by Iron Hill's use of "Cannibal" because the beer product that the brewery provides is different from the restaurant services provided by Cannibal Beer & Butcher. "In light of the large number of restaurants in the United States, the facts that a single mark is sometimes used [to] identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer are not sufficient to establish a relationship between restaurant…
