A consumer has filed a putative class action against Ghirardelli alleging that the company deceptively advertised its white chocolate products as containing chocolate, white chocolate or cocoa butter. Vega-Encarnacion v. Ghirardelli Chocolate Co., No. 15-1821 (D.P.R., filed June 16, 2015). Three of the products at issue in the complaint were the subjects of an October 2014 class action settlement open only to consumers who purchased the product “in the United States,” so the Puerto Rican consumer seeks to represent those similarly situated in U.S. territories. Additional details about the settlement appear in Issue 540 of this Update. The complaint cites the U.S. Food and Drug Administration’s (FDA’s) definitions of “chocolate” and “white chocolate,” which include required levels of cacao-derived products such as cocoa butter. Ghirardelli’s white-chocolate products—baking chips, confectionery coating wafers and ground white chocolate flavor—do not contain any white chocolate as defined by FDA, but merely white-chocolate flavoring, the…
Category Archives U.S. Circuit Courts
Echoing a lawsuit brought a week earlier by a competitor in the pepper category, a consumer has filed a proposed class action against McCormick & Co. alleging that the company underfills its tins of black pepper because it reduced the pepper in each tin by 25 percent but retained the traditional packaging size. Dupler v. McCormick & Co., No. 15-3454 (E.D.N.Y., filed June 15, 2015). Facing rising prices for black pepper, the complaint argues, McCormick has begun selling 1.5-ounce, 3-ounce and 6-ounce pepper products in place of its 2-ounce, 4-ounce and 8-ounce products, respectively, but continues to use the larger “iconic” packaging it used for decades. This “slack fill” violates the Food, Drug, and Cosmetic Act, the plaintiff argues, and she seeks to represent a New York class in an action for damages, an injunction and attorney’s fees. The unfair-competition suit against McCormick alleging violations of the Lanham Act and…
A consumer has filed a putative class action against H.J. Heinz Co. alleging that the company’s frozen microwave French fries and tater tots contain partially hydrogenated oil (PHO), which contains artificial trans fat, despite packaging that indicates the products contain “0g trans fat.” Backus v. H.J. Heinz Co., No. 15-2738 (N.D. Cal., filed June 18, 2015). The complaint asserts that any intake of trans fat is unsafe and cites the U.S. Food and Drug Administration’s June 16, 2015, final determination that PHOs are not generally recognized as safe for any human food. The complaint further argues that the artificial trans fats in PHO cause several medical conditions such as cardiovascular disease, type 2 diabetes and Alzheimer’s disease. The plaintiff alleges violations of California unfair competition, false advertising and consumer legal remedies statutes and seeks class certification, damages, disgorgement of benefits, an injunction, and attorney’s fees. Issue 569
A California federal court has confirmed its ruling that a plaintiff in a class action against Twinings North America cannot pursue her claim of unjust enrichment because it duplicates her consumer protection claims. Lanovaz v. Twinings N. Am., No. 12-2646 (N.D. Cal., order entered June 10, 2015). Details about the court’s previous rulings narrowing the claims and certifying an injunctive class appear in Issues 485 and 521 of this Update. In her complaint, the plaintiff alleged that Twinings misbranded its green, black and white teas as a “natural source of protective antioxidants” despite failing to meet U.S. Food and Drug Administration standards for nutrient content claims. The court certified an injunctive class but denied the plaintiff’s unjust enrichment claim. The plaintiff, seeking certification for a damages class through that claim, filed a motion for reconsideration arguing that the damages available through the unjust enrichment claim were different from the damages available via…
A New Jersey federal court has again denied class certification to a trio of women suing Beam Global Spirits & Wine for allegedly misrepresenting Skinnygirl® Margaritas as using “only natural ingredients” despite containing sodium benzoate. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J., order entered June 8, 2015). Details about the court’s previous examination of certification appear in Issue 529 of this Update. The plaintiffs argued that the class could be ascertained through a three-level screening process designed to limit the number of fraudulent claims. The process would require potential claimants to provide a (i) claim form and receipt for the purchase of the product or (ii) a sworn affidavit with the dates, locations and prices of their Skinnygirl® Margarita purchases as well as a description of the bottle. In the latter case, the screeners would then check the potential claimants’ affidavits for accuracy to determine, for…
In an amended complaint, a plaintiff has alleged that Campbell Soup Co.’s Prego® sauces contain canola oil with genetically modified organisms (GMOs) despite the products’ “100% Natural” label claims. Nelson v. Campbell Soup Co., No. 14-2647 (S.D. Cal., amended complaint filed June 8, 2015). The complaint asserts that 90 percent of canola crops in the United States are genetically modified, and because Campbell does not “undertake additional expensive steps to purchase and verify a supply from non-GMO growers,” the canola oil used in Prego® products includes GMOs. The plaintiff argues that a “reasonable California consumer, like Plaintiff, would not expect a Product labeled ‘100% Natural’ to contain ingredients made from genetically modified crops, which are, by definition, artificial and synthetic.” She seeks damages and attorney’s fees for her allegations of unfair competition and false advertising. Issue 568
Watkins Inc., a Minnesota-based company known for its black pepper, has filed a lawsuit against McCormick and Co., Inc., a global purveyor of spices, alleging that McCormick recently began underfilling its pepper containers but continued using the same size of packaging. Watkins Inc. v. McCormick and Co., No. 15-2688 (D. Minn., filed June 9, 2015). The complaint provides photographic comparisons of Watkins and McCormick tins, a photo of McCormick’s 2-ounce tin alongside the 1.5-ounce tin in a store selling each for the same price, and several photos of stores with shelf tags incorrectly listing the previous size but offering the reduced-size product. “McCormick intentionally kept the tin the same size, with the same price, notwithstanding the 25% decrease in ground black pepper fill, in a manner that misleads retailers and consumers,” the complaint asserts. Watkins alleges that McCormick has violated the Lanham Act and several state business practices acts as…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
A consumer has filed a putative class action against Diageo Americas Supply alleging that its Bulleit® bourbon is not produced in Lawrenceburg, Kentucky, as its label states. M’Baye v. Diageo Ams. Supply, Inc., No. 15-1216 (S.D. Cal., filed June 1, 2015). The complaint asserts that Diageo does not operate a distillery in Lawrenceburg and further alleges that Kirin Brewing Co., “a separate and distinct entity,” makes and distributes the bourbon. The plaintiff points to phrases in the bourbon’s marketing—”small batch,” “ingredients of the very highest quality” and “distinctively clean and smooth”—as evidence that the company intended to position it as a high-end product to justify its sale price of about $53. For allegations of false advertising, unfair competition and misrepresentation, the plaintiff seeks class certification, an injunction, restitution, damages and attorney’s fees. ssue 568
Kashi Co., a unit of Kellogg Co., has agreed to pay up to $3.99 million in a class action alleging that the company advertised its products as “All Natural” despite containing genetically modified organisms (GMOs). Eggnatz v. The Kellogg Co., No. 12-21678 (S.D. Fla., motion for preliminary approval filed June 5, 2015). The proposed settlement agreement provides class members who can prove they purchased the products a full refund and those without proof $0.55 per package, totaling a minimum of $2 million and maximum of $3.99 million in claims. Kashi will also remove the “All Natural” label from products containing the contested ingredients and provide class members with compliance information on the Non-GMO Project Verified seals displayed on some of its products. The settlement agreement applies to the national class but excludes California residents due to a settlement in a case involving similar claims. Issue 568
