Attorneys in the U.S. Department of Justice and U.S. Department of Health and Human Services have filed a lawsuit against Wholesome Soy Products to permanently enjoin the company, its owner and manager from causing food to become adulterated under the Federal Food, Drug, and Cosmetic Act (FDCA) after government agencies allegedly linked the company’s facilities to a 2014 outbreak of Listeria in Michigan and Illinois. United States v. Wholesome Soy Prods., Inc., No. 15-2974 (N.D. Ill., filed April 3, 2015). Wholesome Soy manufactured and sold mung bean and soybean sprouts until November 2014, when the Centers for Disease Control and Prevention (CDC), U.S. Food and Drug Administration (FDA) and state agencies allegedly traced incidents of Listeria infections observed in five people to the Wholesome Soy facility. An FDA laboratory allegedly found Listeria in 28 samples—including two from mung bean sprouts—taken during a September 2014 inspection of Wholesome Soy’s plant and…
Category Archives U.S. Circuit Courts
Several policy groups, including Food & Water Watch and the Center for Food Safety, have filed a lawsuit challenging a U.S. Department of Agriculture (USDA) procedural change in how ingredients are removed from the National List, a list of synthetics exempted from the Organic Foods Production Act (OFPA). Ctr. for Food Safety v. Vilsack, No. 15-1590 (N.D. Cal., filed April 7, 2015). The National List catalogs synthetic and prohibited natural substances that may be used in organic farming despite not being inherently organic because the substances (i) have been determined by USDA not to harm human health or the environment, (ii) cannot be replaced with an organic alternative and (iii) are consistent with organic farming and handling. The groups challenge a 2013 revision to the process for removing an exempted substance from the National List. OFPA created a sunset provision that removed substances from the list—thereby prohibiting their use in…
A federal jury in Pennsylvania has found that H.J. Heinz Co. did not appropriate the idea of a dual-opening condiment packaging, the “Dip & Squeeze” packet, from a man who proposed a similar idea during a meeting with the company. Wawrzynski v. H.J. Heinz Co., No. 11-1098 (W.D. Penn., verdict entered April 1, 2015). The plaintiff claimed that after he presented his “Little Dipper” packaging to the company in 2008, Heinz commissioned him to create samples for testing then abruptly ended the relationship in 2009. The “Dip & Squeeze” packet was introduced in 2010. After a three-day trial, the jury found that the man’s idea was novel but different from the product that Heinz ultimately pursued. Additional details on the case appear in Issues 531 and 552 of this Update. See Law360, April 1, 2015; Legal Intelligencer, April 2, 2015. Issue 560
A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update. The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products…
Food Network’s “Barefoot Contessa” and her company have reportedly reached a settlement agreement with Aqua Star (USA) Co. less than one month after the celebrity chef filed a complaint alleging trademark infringement for frozen dinners bearing the phrase “Contessa Chef Inspired.” Barefoot Contessa Pantry LLC v. Aqua Star (USA) Co., No. 15-1092 (U.S. Dist. Ct., S.D.N.Y., settlement reached March 12, 2015). Ina Garten and her company, Barefoot Contessa, alleged that Aqua Star and its subsidiary, OFI Imports, manufactured and sold frozen dinners too similar to products made by a former licensee of Garten’s name and likeness. Aqua Star has reportedly agreed to stop selling products with the Barefoot Contessa mark, remove and destroy the products from shelves by early May, and pay an undisclosed amount of money. Additional information about the complaint appears in Issue 556 of this Update. See SeafoodSource.com, March 13, 2015. Issue 559
Two plaintiffs who alleged that Vital Pharmaceuticals Inc. conceals the unsafe nature of its Redline® Xtreme energy drink have settled with the company for the approximate purchase price of a single product plus interest. Mirabella v. Vital Pharm., Inc., No. 12-62086 (U.S. Dist. Ct., S.D. Fla., joint stipulation and notice of settlement filed March 16, 2015). According to a notice filed with the court, the company has agreed to pay each plaintiff the cost of one drink—$2.50 to one, $2.99 to the other—along with accrued interest within 10 days of receiving general releases from the plaintiffs. A Florida federal court refused to certify the plaintiffs’ proposed class on February 27, 2015. Additional details about that decision appear in Issue 557 of this Update. Issue 559
A California federal court has approved the proposed settlement in a class action alleging that Jamba Juice® mislabels its smoothie kits as “all natural” despite containing synthetic ingredients gelatin, xanthan gum, ascorbic acid, steviol glycosides, and modified corn starch. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., settlement approved March 18, 2015). The December 2014 proposed settlement was reached three months after the court certified the class for liability but not for damages. Under the agreement, Jamba Juice® will remove “all natural” on the product packaging and the company website by March 31, 2015. Additional information about the settlement appears in Issue 547 of this Update. Issue 559
An Illinois federal court has dismissed a lawsuit alleging that Kind misleadingly labeled its Vanilla Blueberry Clusters as having “no refined sugars” despite containing evaporated cane juice (ECJ) and molasses. Ibarrola v. Kind, LLC, No. 12-50377 (N.D. Ill., order entered March 12, 2015). The plaintiff had alleged that ECJ and molasses result from refining sugar cane—albeit less refining than what is required to produce table sugar—and as a result, the label’s claim of “no refined sugar” was fraudulent, breached an express warranty and violated the state’s consumer-protection law. The court found the plaintiff’s claim that she read the entire package, including the ingredients list, before purchasing the product contradicted her claim that she did not understand that the product contained partially refined sugars, noting that courts “have dismissed complaints premised on such logical inconsistencies.” The court also compared what she claimed to believe to what a reasonable consumer would believe upon…
Whole Oats Enterprises, a partnership of musicians Daryl Hall and John Oates, has filed a lawsuit against Early Bird Foods & Co. alleging that the name of the company’s “Haulin’ Oats” granola product infringes on their trademarks. Whole Oats Enters. v. Early Bird Foods & Co., No. 15-1124 (E.D.N.Y., filed March 4, 2015). The musicians own the registered trademark in “Daryl Hall and John Oates” and assert common law trademark rights to “Hall & Oates,” which the group often calls itself. Early Bird’s “Haulin’ Oats,” a granola product containing rolled oats and maple syrup, is an “obvious” “phonetic play” on the band name, the complaint alleges. The complaint also details a 2014 attempt at the use of “Haulin’ Oats” by a Tennessee company selling oatmeal and food-delivery services. The company assigned its rights to “Haulin’ Oats” to Whole Oats, which then licensed the name back to the company in exchange for royalties.…
