A Delaware cheese company and two individual defendants have pled guilty to a misdemeanor violation of the federal Food, Drug, and Cosmetic Act for distributing adulterated ricotta, queso fresco and fresh cheese curds in several neighboring states. U.S. v. Roos Foods, Inc., No. 16-0013 (D. Del., information filed January 22, 2016). Roos’ cheese was connected to a 2014 outbreak of Listeria that caused five adults and three newborns to contract listeriosis. The criminal information alleged the company produced the cheese in unsanitary conditions, including the “[f]ailure to clean food-contact surfaces as frequently as necessary to protect against contamination of food” and “failure to store raw materials or ingredients in a manner that protects against contamination.” In their agreement with the U.S. Food and Drug Administration (FDA), the defendants agreed to an injunction preventing them from processing or distributing food products until they undergo an FDA inspection and facility testing by…
Category Archives U.S. Circuit Courts
The Association of National Advertisers, Inc. (ANA) has filed an amicus brief in a case challenging San Francisco’s health code provisions requiring advertisements on sugar-sweetened beverages (SSBs) to notify the public of alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., San Francisco Div., amicus brief filed January 22, 2016). The brief focuses on First Amendment arguments against requiring private parties to include government speech on their product labels. “The City of San Francisco’s imposition of the Warning Mandate in reaction to potential over-consumption of sugar-sweetened beverages by its citizens, whatever the merits of that concern, takes regulatory Nannyism to new levels and is wholly incompatible with First Amendment protections afforded to commercial speech,” the brief argues. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there…
A jury in Alabama has found Golden Peanut Co. liable for an accident causing an employee welder to inhale peanut dust, resulting in a pneumonia infection and subsequent lung transplant. Smith v. Golden Peanut Co., No. 14-0999 (M.D. Ala., jury verdict filed January 15, 2015). The welder was apparently inside a grain elevator when a truck began dumping peanuts into the shaft, causing the peanut dust to become “so thick in the work area of the elevator pit shaft that [the welder] could not see his hand in front of his face.” He was then diagnosed with pneumonia, required the use of an oxygen tank and became unable to work. In its verdict, the jury concluded the welder could recover $718,113.25 for his negligence claim. See Law360, January 15, 2016. Issue 591
Whole Foods and a consumer have reached an agreement in a lawsuit alleging the company misrepresented the prices of its products before the point of purchase. Burgos v. Whole Foods Mkt. Grp., No. 15-7357 (D.N.J., stipulation filed January 20, 2016). The plaintiff alleged that some of Whole Foods’ price displays failed to meet the state’s requirements, which she argued amounted to violations of New Jersey’s consumer-protection statute. The stipulation specifies that the individual plaintiff’s claims are dismissed with prejudice, but the plaintiff’s proposed class is not bound to the terms of the agreement. Issue 591
A California federal court has dismissed a lawsuit against Costco Wholesale Corp. alleging the company’s shrimp was falsely advertised as adherent to a supplier code of conduct on human rights while the product was allegedly obtained through the use of slave labor. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., order entered January 15, 2016). The plaintiff argued that she was harmed because she purchased shrimp relying on Costco’s misrepresentation; the court disagreed after Costco provided records of the plaintiff’s and her mother’s purchases, which the company tracks through its membership program. Accordingly the court granted Costco’s motion to dismiss but allowed the plaintiff leave to amend. Details about the August 2015 complaint appear in Issue 576 of this Update. Issue 591
The U.S. Department of Justice (DOJ) has intervened in an ongoing series of lawsuits against Tri-Union Seafoods, StarKist and Bumble Bee Foods alleging the companies conspired to set prices for tuna in the United States. In re Packaged Seafood Prods. Antitrust Litig., 15-2670 (S.D. Cal., order entered January 20, 2015). A California federal court granted the government’s unopposed motion to intervene at a status conference with attorneys representing several consumer and competitor plaintiffs in the consolidated action. The court found “common questions of law and fact between this civil action and an ongoing criminal grand jury investigation” conducted by the DOJ and accordingly granted a stay in the case. Details about the consolidation appear in Issue 588 of this Update and additional information on lawsuits brought by grocers appears in Issues 574 and 590. Issue 591
The U.S. Supreme Court has held that a class action can continue after the defendant offers the lead plaintiff everything requested and the plaintiff rejects the offer. Campbell-Ewald Co. v. Jose Gomez, No. 14-857 (U.S., order entered January 20, 2016). The claim at issue stemmed from an alleged violation of the Telephone Consumer Protection Act by Campbell-Ewald Co. after the U.S. Navy contracted the company to create a multimedia recruiting campaign. Campbell-Ewald offered the plaintiff costs plus $1,503 per unwanted text message received, but the plaintiff let the settlement offer expire without response. The company then moved to dismiss the case on the grounds that no case or controversy existed because its offer had mooted the plaintiff’s claim by providing him with complete relief. The district court denied the motion’s argument and the Ninth Circuit later agreed, but other federal appeals courts had decided the issue differently. The Supreme Court…
Idahoan Foods LLC has filed a lawsuit against Basic American Inc. alleging the company’s line of potato products marketed under the name “Buttery Home-Style” infringes on Idahoan’s rights to “Buttery Homestyle,” its brand of potato products. Idahoan Foods LLC v. Basic Am. Inc., No. 16-0005 (D. Idaho, filed January 6, 2016). Idahoan’s trademark application to the U.S. Patent and Trademark Office was filed in May 2015 and remains pending, but the company argues that it has used “Buttery Homestyle” commercially since 2003. Idahoan notified Basic American in December 2015 of its allegedly superior rights to the mark; the complaint asserts that Basic American then filed a lawsuit in California federal court seeking a declaratory judgment that “Buttery Home-Style” does not infringe “Buttery Homestyle.” Idahoan seeks an injunction, destruction of the infringing mark, damages and maturation of its trademark application. Issue 590
Chobani has filed a lawsuit seeking a declaratory judgment that its advertisements claiming competitor Dannon’s yogurt contains chlorine are not false or misleading, prompting Dannon to file a counterclaim seeking a preliminary injunction. Chobani v. The Dannon Co., Inc., No. 16-0030 (N.D.N.Y., complaint filed January 8, 2016, counterclaim filed January 11, 2016). Chobani’s complaint details its campaign, launched January 6, 2016, that asserts “Dannon’s Light & Fit Greek Yogurt contains sucralose, an artificial sweetener processed with added chlorine.” The company seeks a declaration that its claims are not false, misleading, disparaging or deceptive under the Lanham Act or New York state law. Dannon’s response argues that the ad campaign “has been misinforming consumers about the health and safety of Dannon’s products while exaggerating the relative health benefits of its own product.” The counterclaim defends sucralose and its use, arguing that it “is not ‘bad’ or harmful.” Further, “Chobani’s campaign falsely…
The U.S. Court of Appeals for the Federal Circuit has affirmed a Patent Trial and Appeal Board ruling that a method of enzymatic hydrolysis of soy fiber for use in creating food additives is not patentable because it would have been obvious in light of previous inventions. In re Urbanski, No. 15-1272 (Fed. Cir., order entered January 8, 2016). The plaintiffs challenged the U.S. Patent and Trademark Office’s denial of a patent for their technique of creating food additives from soy fiber, which the examiner found to be “readily combinable” from two prior inventions. The Federal Circuit agreed with the examiner’s and appeals board’s determinations that a person of ordinary skill would have expected that adjusting the process as the plaintiffs did would have yielded the results they reached. Accordingly, the court affirmed the prior dismissal. Issue 590
