A consumer has filed a putative class action against The Quaker Oats Co. alleging the company falsely advertises its oatmeal products as “100% natural” because it contains the herbicide glyphosate. Cooper v. Quaker Oats Co., No. 16-2364 (N.D. Cal., San Francisco Div., filed April 29, 2016). The plaintiff argues the cancer-research arm of the World Health Organization declared glyphosate—”a potent and unnatural biocide” that the company sprays on oats as a drying agent, according to the complaint—to be a “probable human carcinogen” in 2015. The complaint admits the use of glyphosate is legal but asserts that its use in combination with a “100% natural” claim amounts to misrepresentation. For allegations of breach of warranty and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, a compelled corrective advertising campaign, damages, restitution and attorney’s fees. Issue 603
Category Archives U.S. Circuit Courts
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
Two consumers have filed a putative class action against Panera LLC involving the restaurant chain’s “2.0” ordering system using touchscreen kiosks and a “fast lane” pick-up shelf, which they allege fails to accommodate the visually impaired. Gomez v. Panera LLC, No. 16-21421 (S.D. Fla., filed April 20, 2016). The plaintiffs argue that they each visited a Florida location of Panera and found themselves “unable to enjoy the same ordering and dining experience as sighted patrons” because they were “denied the ability to independently select and purchase lunch.” The kiosks “were not designed and programmed to interface with commercially available screen reader software and further were not equipped with auxiliary aids (such as an audio interface system) for disabled individuals who are visually impaired,” the complaint alleges. The plaintiffs further argue that Panera’s website is unusable to them because it does not integrate with their screen reader programs. They seek orders…
A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
A California federal court has dismissed a lawsuit alleging Kraft Heinz Food Co. mislabels its Heinz sauces as manufactured in the United States despite containing ingredients sourced outside the country, including turmeric, tamarind extract and jalapenos. Alaei v. Kraft Heinz Food Co., No 15-2961 (S.D. Cal., order entered April 22). The complaint failed to meet the heightened pleading standards associated with fraud claims, the court found, in part because she did not allege that the Heinz 57® sauce she bought contained any specific ingredients of foreign origin. Further, she could not have standing to assert misrepresentation claims against products she did not purchase without arguing the other sauces were substantially similar to Heinz 57®. Accordingly, the court granted Kraft’s motion to dismiss but allowed the plaintiff leave to amend. Additional information on the complaint appears in Issue 589 of this Update. Issue 602
A New York federal court has rejected Chobani, LLC’s motion for reconsideration of a preliminary injunction preventing the company from claiming in its advertising that competitor Dannon Co.’s yogurt products contain chlorine and are thereby unhealthy, unsafe and inferior to Chobani yogurt. Chobani, LLC v. Dannon Co., Inc., No. 16-0030 (N.D.N.Y., order entered April 22, 2016). Chobani’s marketing campaign displayed an image of a swimming pool—which is cleaned with calcium hypochlorite, a substance colloquially referred to as “chlorine”—while asserting that Dannon Light & Fit® yogurt contained chlorine, one of four chemical elements that constitute sweetener sucralose. Additional details about the complaint appear in Issue 590 of this Update. According to the court, Chobani argued that the “limitations place it at a competitive disadvantage because it completely precludes usage of the phrase ‘no bad stuff’ in relation to Dannon products regardless of whether or not a safety message is at issue.…
Public-interest group Cornucopia Institute has filed a lawsuit against Tom Vilsack in his capacity as Secretary of Agriculture alleging that he and the U.S. Department of Agriculture (USDA) violated the Organic Foods Production Act of 1990 by appointing “unqualified individuals” to the National Organic Standards Board (NOSB), which develops a list of synthetic substances allowed in the production of organic food, the National List of Allowed and Prohibited Substances. Cornucopia Inst. v. Vilsack, No. 16-0246 (W.D. Wis., filed April 18, 2016). Federal law requires the composition of the NOSB to be “balanced and independent,” Cornucopia argues, but USDA “inappropriately influenced” the board in a number of ways, including (i) disbanding its Policy Development Subcommittee, (ii) allowing the self-appointment of the board’s co-chairperson, and (iii) removing the board’s ability to set its own work plan. “USDA’s unlawful meddling with the composition and rules governing the NOSB has created a NOSB hostile…
A Florida federal court has denied Chipotle’s motion to dismiss a putative class action alleging the company misrepresents its food as free of genetically modified organisms (GMOs) despite selling meat produced from animals fed GMOs. Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., order entered April 20, 2016). Chipotle argued that the plaintiff had no standing to sue because she did not specify which products she purchased; the court found she had sufficiently pleaded her claims to support standing for her consumer-protection claims, but not her request for an injunction. Chipotle also challenged the plaintiff’s understanding of “non-GMO” as “nonsensical,” but the “reasonableness of her definition, upon which her interpretation of Chipotle’s advertisements is based, is a question better decided upon examination of the evidence,” the court held. Accordingly, it granted Chipotle’s motion to dismiss the request for injunctive relief but denied it as to the rest of…
An Oregon federal court has dismissed a lawsuit alleging Gerber’s Graduates® Puffs is mislabeled because its packaging displays fruits and vegetables not contained in the product. Henry v. Gerber Prods. Co., No. 15-2201 (D. Ore., order entered April 18, 2016). The court first denied the plaintiff’s request to remand the case to state court, then turned to Gerber’s motion to dismiss the claims based on preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued that U.S. Food and Drug Administration (FDA) regulations allow the company to provide visual depictions of the product’s “‛characterizing flavor,’ even if the product does not actually contain any of the depicted fruit, or indeed any fruit at all.” The court agreed, finding that the law is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a different question for a different day.” The court dismissed the case but granted…
