A consumer has filed a putative class action in New York federal court against Blue Diamond Growers alleging that the company deceptively labels its Almond Breeze Almond Milk as “All Natural” despite containing potassium citrate, Vitamin A Palmitate, Vitamin D2, and D-Alpha-Tocopherol. Harlam v. Blue Diamond Growers, No. 15-877 (E.D.N.Y., filed February 19, 2015). The plaintiff alleges that 18 varieties of Blue Diamond almond milk contain the ingredients at issue, which she asserts are artificial or synthetic and, as a result, reasonable consumers would not expect to find them in products labeled as natural. “The [U.S. Food and Drug Administration] considers use of the term ‘natural’ on a food label to be truthful and non-misleading when ‘nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food,’” she argues. Alleging unjust enrichment, breach…
Category Archives Litigation
A Florida federal court has refused to certify a nationwide class in a case alleging that Vital Pharmaceuticals Inc. conceals the unsafe nature of its Redline® Xtreme energy drink. Mirabella v. Vital Pharm., Inc., No. 12-62086 (S.D. Fla., order entered February 27, 2015). Vital Pharmaceuticals argued that the class was unascertainable because it does not keep a master list of consumers, and customers rarely keep finished bottles that would help prove they belong in the class. The court agreed, finding that the energy drink “generally sold for less than $3.00” and customers were unlikely to retain receipts or other records of purchase; in addition, the company sells a variety of similarly branded products that may render consumers unable to determine whether they belong to the class because they might not remember which product they purchased. “Even Plaintiffs are unable to reliably recall or objectively prove how many bottles of the…
Refusing to certify the class, a California federal court has granted a partial motion to dismiss in a putative class action alleging that Ocean Spray Cranberries Inc. mislabels its “100% Juice” products as “No Sugar Added” despite adding fruit juice from concentrate. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., order entered February 26, 2015). The plaintiff argued that adding the concentrate and labeling the products “No Sugar Added” violates California law, which prohibits use of that phrase on food “containing added sugars such as jam, jelly, or concentrated fruit juice.” Instead, she asserted, Ocean Spray must include the disclaimer that their products are not low-calorie foods. Ocean Spray argued that the plaintiff did not rely on the “No Sugar Added” label when purchasing the products, and the court agreed, pointing to a deposition in which the plaintiff admitted that calorie content was not a motivating factor in…
A California appeals court has affirmed a lower court’s ruling dismissing a putative class action alleging that Safeway misbranded its Lucerne-brand of Greek yogurt because U.S. Food and Drug Administration (FDA) regulations prohibit the use of “milk protein concentrate” (MPC) in foods labeled as yogurt. Tamas v. Safeway, Inc., No. RIC1206341 (Cal. Ct. App., 4th Dist., Div. 3, order entered February 23, 2015). The plaintiff argued that a 1981 FDA regulation determining yogurt’s “Standard of Identity” (SOI) dictated what ingredients are allowable in products sold as yogurt despite the agency’s stay of the regulation soon after it was issued. FDA promised to schedule a public hearing on the regulation but, as of January 2009, “due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed. Therefore, these provisions were never in effect. Consequently, cultured milk…
A California federal court has dismissed a lawsuit arguing that PepsiCo Inc. should provide medical monitoring for a class of Diet Pepsi or Pepsi One purchasers because the company does not warn consumers that 4-methylimidazole (4-MEI), a compound in caramel coloring, has allegedly been linked to potential health risks in rodent studies. Riva v. PepsiCo, Inc., No. 14-2020 (N.D. Cal., order entered March 4, 2015). The case was severed from a consolidated class action after the plaintiffs decided to pursue medical monitoring and personal injury claims not included in the consolidated action. Information about the case’s transfer of venue appears in Issue 523 of this Update. The court determined that the plaintiffs lacked standing to pursue the claim because “they have not established that the alleged risk of bronchioloalveolar cancer (for which they seek lung scans and testing) is both credible and substantial.” The studies cited as support for the…
Ina Garten, the chef who hosts Food Network’s “Barefoot Contessa,” and her company have filed a lawsuit against a seafood producer for allegedly infringing the Barefoot Contessa mark with its line of “Contessa Chef Inspired” frozen dinners. Barefoot Contessa Pantry LLC v. Aqua Star (USA) Co., No. 15-1092 (S.D.N.Y., filed February 17, 2015). Barefoot Contessa, the company that owns the trademarked name, agreed in 2012 to license the mark to unrelated entity Contessa Premium, a frozen- dinner manufacturer, on the condition that Garten and the company had strict control over the quality of the dinners produced and marketed under the Barefoot Contessa name. In April 2014, Contessa Premium sold its assets to OFI Imports, Inc. and its parent company, Aqua Star, according to the complaint. The day after the sale, Barefoot Contessa apparently terminated the license and refused to grant OFI a new license, “given OFI’s lack of experience in…
A consumer has filed a putative class action against Jim Beam Brands Co. and its owner Beam Suntory Import Co. alleging that the label indicating that the bourbon whiskey is “handcrafted” is misleading because the bourbon is produced with machines. Welk v. Beam Suntory Import Co., No. 15-328 (U.S. Dist. Ct., filed February 17, 2015). The complaint asserts that videos, photos and diagrams on Jim Beam’s website show that its bourbon “is manufactured using mechanized and/or automated processes, resembling a modern day assembly line and involving little to no human supervision, assistance or involvement.” The handcrafted claim leads consumers to purchase Jim Beam Bourbon falsely believing it to be of superior quality, so they are willing to pay a premium price, the complaint argues. The plaintiff alleges misrepresentation and violations of California’s False Advertising Law and Unfair Competition Law, and he seeks class certification, an injunction, an order for Jim…
The Federal Trade Commission (FTC) has filed an administrative complaint arguing that a proposed merger of US Foods and Sysco would violate antitrust laws, resulting in higher prices and diminished service for the companies’ customers. In re Sysco Corp., No. 9364 (FTC, filed February 19, 2015). The complaint asserts that a merger of Sysco and US Foods, the largest broadline foodservice distributors in the United States, would account for 75 percent of the national market for broadline distribution services. The sale of 11 US Foods distribution centers to another distributor would not counteract the significant competitive harm caused by the merger, FTC argues. “This proposed merger would eliminate significant competition in the marketplace and create a dominant national broadline foodservice distributor,” Debbie Feinstein, the director of FTC’s Bureau of Competition, said in February 19, 2015, press release. “Consumers across the country, and the businesses that serve them, benefit from the…
According to a joint motion filed in Florida federal court, Papa John’s International Inc. and a class of consumers have reached an agreement in a lawsuit alleging that the pizza company charged tax on delivery fees in violation of state law. Schojan v. Papa John’s Intl. Inc., No. 14-1218 (M.D. Fla., motion filed February 16, 2015). The motion requested that the district court remand the case to state court because the federal court lacks jurisdiction under the Tax Injunction Act and stipulated that the parties “have reached an agreement in principle to settle this action in its entirety upon its remand to state court.” The March 2014 complaint had alleged that Papa John’s charged more than $5 million in state tax on the more than $74.5 million in delivery fees it had earned in Florida since 2010. The court certified a class of consumers and denied the pizza company’s motion…
An Illinois federal court has dismissed with prejudice a suit brought by two purported heirs of Anna Short Harrington, the woman who portrayed Aunt Jemima from 1935 to the 1950s, against PepsiCo Inc., The Quaker Oats Co., Pinnacle Foods Group, and The Hillshire Brands Co. Hunter v. PepsiCo Inc., No. 14-6011 (U.S. Dist. Ct., N.D. Ill., order entered February 18, 2015). Harrington served as the face of the Aunt Jemima brand in commercials and public appearances for more than a decade pursuant to a contract which allegedly provided that she would receive a percentage of the proceeds and royalties for the use of her image. The plaintiffs brought 15 causes of action against the food companies, including deprivation of the right of publicity, breach of contract and violation of the International Convention on the Elimination of all Forms of Racial Discrimination. In the complaint, the plaintiffs asserted that they were…
