Two consumers allege that Hawaiian Host Candies, "synonymous with Hawaii," are made in Gardena, California. Toy v. Hawaiian Host Candies of L.A. Inc., No. 20-2191 (C.D. Cal., filed November 17, 2020). "Had Plaintiffs and other consumers known that the Hawaiian Host Products are not made in Hawaii, they would have paid significantly less for them, or would not have purchased them at all," the complaint alleges. The plaintiffs assert that the candy packaging intentionally misleads consumers with the candy name as well as statements such as "Hawai'i's Gift to the World," "Hawaiian Host products are made with aloha" and "Our classic confections reflect our deep connection to Hawai'i and are meant to be shared with others in the true spirit of Aloha." The packaging also includes the name of Hawaiian Host Inc. and a Honolulu address. As further evidence, the complaint cites the company's social media feeds, which share images of…
Category Archives U.S. Circuit Courts
Three similar lawsuits were filed against Target Corp., Gerber Products Co. and Mead Johnson & Co. alleging their "transition" formulas intended for 9- to 18-month-old children are misleadingly marketed as reviewed and monitored by the U.S. Food and Drug Administration to the same extent infant formulas are. Gavilanes v. Gerber Prods. Co., No. 20-5558 (E.D.N.Y., filed November 15, 2020); Gordon v. Target Corp., No. 20-9589 (S.D.N.Y., filed November 15, 2020); Palmieri v. Mead Johnson & Co., No. 20-9591 (S.D.N.Y., filed November 15, 2020). The complaints assert that the use of the infant formula nutrition panel on the back of the packaging "gives caregivers the impression that the Product is subject to the same scrutiny and oversight as Infant Formula products," causing buyers to be "less likely to identify the added sugar in the Infant & Toddler Formula Product, in the form of corn syrup solids, absent from the Infant Formula product." The…
A consumer has filed a putative class action alleging that Kerry Inc.'s Oregon Chai products contain too much sugar to be labeled "slightly sweet." Brown v. Kerry Inc., No. 20-9730 (S.D.N.Y., filed November 18, 2020). The complaint argues that the product's "most prominent claim, 'Slightly Sweet,' is an unlawful nutrient content claim that makes an 'absolute' or 'low' claim about the amount of sugar it contains." The product contains 11 grams of sugar and lists "organic dried cane sugar syrup" as the second ingredient on the ingredient list, and the complaint argues that the addition of milk or milk substitute as instructed by the packaging would result in a total of 20 grams of sugar per serving. The plaintiff alleges negligent misrepresentation, fraud and unjust enrichment along with violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.
The U.S. Food and Drug Administration (FDA) has filed a lawsuit seeking to enjoin Valley Processing Inc. from introducing adulterated food into interstate commerce. USA v. Valley Processing Inc., No. 20-3191 (E.D. Wa., filed November 6, 2020). FDA alleges Valley Processing's juice products "have been found to contain inorganic arsenic and patulin, both toxins which pose a health risk to consumers." The products were supplied to the U.S. Department of Agriculture's school lunch program, "providing approximately 2,964,000 apple juice servings to schoolchildren every year." FDA allegedly found "grossly insanitary conditions" during inspections in 2016, 2017, 2018 and 2019, including barrels containing "grape juice concentrate that was several years old" and "contaminated by filth and mold, thus not suitable for human consumption." Investigators "also discovered that Defendants processed the 'bottoms' of stored grape juice concentrate. The 'bottom' of juice concentrate is the leftover sludge that accumulates at the bottom of the…
A Massachusetts federal court has dismissed allegations against Polar Corp. asserting the company's ginger ale products contain a "miniscule amount" of ginger that "provides none of the health benefits consumers associate with real ginger." Fitzgerald v. Polar Corp., No. 20-10877 (D. Mass., entered November 10, 2020). The court noted that the complaint "appears to have been imperfectly copied from a nearly identical case brought in the Northern District of California involving Canada Dry ginger ale." The court was unpersuaded that Polar Corp. misrepresented that the ginger ale contained ginger, finding that ginger was indeed an ingredient. "[N]o reasonable consumer could rely on a claim of 'real ginger' in a soft drink as a representation that the drink contains chunks of 'ginger root' as opposed to a ginger taste," the court found, dismissing the plaintiff's allegations that rested on the existence of false statements.
A California federal court has granted class certification to consumers who purchased Kroger Co. breadcrumbs relying on a front-label representation stating the product contained "0g Trans Fat" despite the product's partially hydrogenated oil (PHO) content. Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., entered November 9, 2020). The court found that the class met all requirements for certification and granted the plaintiff's motion, certifying a class of "All citizens of California who purchased, between January 1, 2010 and December 31, 2015, Kroger Bread Crumb containing partially hydrogenated oil and the front label claim '0g Trans Fat.'"
A California federal court has ordered the U.S. Food and Drug Administration (FDA) to conduct an assessment on the effects that could ensue if genetically engineered (GE) salmon escaped aquaculture farms and established themselves in the wild. Inst. for Fisheries Resources v. FDA, No. 16-1574 (N.D. Cal., entered November 5, 2020). The court found that the agency did not "meaningfully analyze what might happen to normal salmon in the event the engineered salmon did survive and establish themselves in the wild," "[e]ven if this scenario was unlikely." The court noted that FDA knew that AquaBounty was likely to establish additional farms. "Obviously, as the company’s operations grow, so too does the risk of engineered salmon escaping. Thus, it was particularly important at the outset for the agency to conduct a complete assessment of the risks posed by the company’s genetic engineering project, including an assessment of the consequences for normal salmon…
A California federal court has dismissed without prejudice a lawsuit alleging Kellogg Sales Co. misleads consumers as to the characterizing flavor of its Bear Naked V'Nilla Almond granola, finding that the plaintiff could not support his allegation that the product does not contain sufficient amounts of vanilla. Zaback v. Kellogg Sales Co., No. 20-0268 (S.D. Cal., entered October 29, 2020). The plaintiff alleged that the image of vanilla beans on the granola packaging misleadingly implied that "real vanilla derived exclusively from vanilla beans" was the only characterizing flavor. The court had previously dismissed the "allegation that merely because vanilla is expensive Kellogg would have included vanilla on the Product’s ingredient list" and instead assessed the plaintiff's argument that Kellogg "admitted" the product did not contain sufficient vanilla to flavor the granola. "The 'admission' boils down to this: Kellogg’s use of 'Natural Flavors' on the Product’s ingredient list means the product does…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. mislabels its chocolate-coated ice cream bars because the "purported chocolate contains vegetable oils." Mitchell v. Whole Foods Mkt. Grp. Inc., No. 20-8496 (S.D.N.Y., filed October 12, 2020). "Consumers want chocolate in chocolate products to come from a real source, i.e., from cacao beans," the complaint asserts. "Chocolate provides greater satiety and a creamy and smooth mouthfeel compared to other ingredients which substitute for chocolate, like vegetable oils, which provide less satiety, a waxy and oily mouthfeel and leave an aftertaste." The plaintiff argues that the product's chocolate "contains ingredients not found in real chocolate," such as organic expeller pressed palm kernel oil, and alleges the inclusion of the ingredients amounts to fraud, negligent misrepresentation and unjust enrichment as well as violations of the Magnuson-Moss Warranty Act and New York's consumer-protection statutes.
A consumer has alleged that Frito-Lay Inc.'s Baked Cheddar and Sour Cream chips use diacetyl to obtain the sour cream flavor without referring to diacetyl as a characterizing flavor. Vado v. Frito-Lay Inc., No. 20-2055 (S.D. Cal., filed October 19, 2020). The complaint asserts that artificial diacetyl, which provides a butter flavor, is used to enrich the taste of sour cream that has been produced from cows raised on a feedlot rather than a pasture. The plaintiff argues that the diacetyl is thus a characterizing flavor of the chips and alleges the chips should be labeled "Cheddar and Artificial Sour Cream Flavored." The complaint also distinguishes the baked variety of the chips from the brand's conventional version, which "actually contains sour cream and unlike the Mislabeled Product, real sour cream is listed as an ingredient on the back-label ingredient list." The plaintiff alleges violations of California consumer-protection statutes as well…
