A New York consumer has filed a lawsuit against Buffalo Wild Wings, Inc. (BWW) alleging the company misleads vegetarian customers into believing the restaurant chain offers vegetarian fare when certain offerings are actually cooked in beef tallow. Borenkoff v. Buffalo Wild Wings, Inc., No. 8532 (S.D.N.Y., filed November 2, 2016). The complaint asserts that BWW does not disclose its use of beef tallow in its menu descriptions, nutritional information or website, and further, the usage departs from the industry standard of non-beef cooking oil. The plaintiff seeks class certification, an injunction, compensatory and punitive damages, costs and attorney’s fees for an alleged violation of New York’s consumer-protection statute and unjust enrichment. Issue 621
Category Archives U.S. Circuit Courts
A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…
A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
A D.C. federal court has denied McCormick & Co.’s motion to dismiss a competitor’s lawsuit alleging the company’s black pepper packaging contains too much slack fill. In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., No. 15-1825 (D.D.C., order entered October 17, 2016). The lawsuit is part of multidistrict litigation joining several consumer class actions with similar allegations. McCormick challenged Watkins Inc.’s standing to sue and asserted that the company failed to state a claim under the Lanham Act, arguing that its packaging does not constitute advertising. The court disagreed, noting, “McCormick argues that size of its pepper tins is not commercial speech, but it is difficult to understand how the size of a package or container could possibly not be considered a form of ‘advertising or promotion.’ [] The size of a package signals to the consumer vital information about a product and is as…
J.R. Simplot Co. has filed a patent infringement suit against McCain Foods USA, Inc. alleging McCain copied Simplot’s twisted potato fries product, Sidewinders®. J.R. Simplot Co. v. McCain Foods USA, Inc., No. 16-0449 (D. Idaho, filed October 7, 2016). Simplot asserts that its patent, “Spiral Potato Piece,” covers the ornamental features of Sidewinders®, including its “inherently distinctive and nonfunctional” shape, and that side-by-side comparisons indicate “McCain copied Simplot’s patented Sidewinders® design in developing its Twisted Potato products.” Simplot alleges patent and trade dress infringement and seeks damages, an injunction and attorney’s fees. Issue 619
Representing a group of three consumers, the Center for Science in the Public Interest (CSPI) has filed a lawsuit against PepsiCo, Inc. alleging the company’s Naked line misleads consumers by naming and labeling its juices with foods “perceived by consumers to be highly nutritious, like kale,” but manufacturing the products without “the ingredient profile represented.” Lipkind v. PepsiCo, Inc., No. 16-5506 (E.D.N.Y., filed October 4, 2016). “Consumers are paying higher prices for the healthful and expensive ingredients advertised on Naked labels, such as berries, cherries, kale and other greens, and mango,” said CSPI Litigation Director Maia Kats in an October 4, 2016, press release. “But consumers are predominantly getting apple juice, or in the case of Kale Blazer, orange and apple juice. They’re not getting what they paid for.” The complaint asserts Naked products “predominantly consist of cheaper and less nutritious ingredients like apple juice” and targets the label’s “no…
Castle Cheese Inc. President Michelle Myrter has reportedly been sentenced to three years of probation, 200 hours of community service at a food bank and a $5,000 fine for misdemeanor charges of food adulteration for selling “100% Parmesan” cheese containing high levels of substitutes, including cellulose. Following a federal investigation and a raid on company facilities, Myrter pleaded guilty to the charges in February 2016. Additional details appear in Issue 596 of this Update. See Bloomberg, October 11, 2016. Issue 619
A California federal court has dismissed a lawsuit alleging the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS) allowed the American Egg Board to unduly influence the government’s nutrition advice on dietary cholesterol. Physicians Comm. for Responsible Med. v. Vilsack, No. 16-0069 (N.D. Cal., San Francisco Div., order entered October 12, 2016). Physicians Committee for Responsible Medicine (PCRM) filed the lawsuit following a change to the 2015 Dietary Guidelines that removed the recommended limit of 300 milligrams per day of dietary cholesterol; instead, the guidelines recommended consuming “as little dietary cholesterol as possible while consuming a healthy eating pattern.” PCRM alleged that the advisory body’s analysis and recommendations were compromised by the presence of scientists who had received funding from the American Egg Board or Egg Nutrition Center. The court assessed whether it had subject matter jurisdiction to consider PCRM’s claim by examining the underlying statutes…
The Ninth Circuit Court of Appeals has reversed a grant of summary judgment to Dole Packaged Foods in a lawsuit alleging the company misleads consumers by labeling its packaged fruit products as “all natural” in violation of California consumer-protection statutes. Brazil v. Dole Packaged Foods, No. 12-1831 (9th Cir., order entered September 30, 2016). The appeals court reviewed the evidence before it—including the plaintiff’s testimony that the “all natural” label deceived him, the label itself, Dole’s consumer surveys and U.S. Food and Drug Administration warning letters—and found that “this evidence could allow a trier of fact to conclude that Dole’s description of its products as ‘All Natural Fruit’ is misleading to a reasonable consumer.” Accordingly, the court reversed the grant of summary judgment and remanded the case to the district court. The Ninth Circuit affirmed the district court’s dismissal of claims alleging Dole sold “illegal products.” The plaintiff “seems to be…
A consumer has filed a putative class action against Dave’s Gourmet, Inc. alleging the company deceives its customers by listing evaporated cane juice (ECJ) on its sauce labels rather than the U.S. Food and Drug Administration’s (FDA’s) preferred term, sugar. Kazemi v. Dave’s Gourmet, Inc., No. 16-5269 (N.D. Cal., filed September 14, 2016). The complaint asserts that the plaintiff and other members of the putative class “would have paid less for the Products or would not have purchased the Products had they known that the Products’ listing of ECJ as an ingredient claim was false, misleading, and deceptive.” For alleged violations of California’s and Florida’s consumer-protection statutes, the plaintiff seeks class certification, injunctions, restitution, damages and attorney’s fees. Issue 618
