A California federal court has dismissed two claims and allowed four to continue in a putative class action alleging that (i) Salov North America Corp. mislabeled its Filippo Berio olive oils as “Imported from Italy” despite using olives grown and pressed in other countries and (ii) its extra virgin olive oils do not meet the high standards required to qualify as “extra virgin,” partly due to inefficient bottling and transportation. Kumar v. Salov North Am. Corp., No. 14-2411 (N.D. Cal., order entered February 3, 2015). The court first assessed Salov’s challenge to the plaintiff’s standing and found that it could not, as a matter of law, determine that a reasonable consumer would not interpret “Imported from Italy” to mean that the product was made exclusively of Italian olives. Salov also asserted that the plaintiff must have seen the statement on the label that informed consumers that the product was “Packed…
Category Archives Litigation
A California federal court has granted plaintiffs’ motion to vacate the judgment and reopened a proposed class action against Attune Foods Inc., finding that the delay in guidance from the U.S. Food and Drug Administration (FDA) on whether “sugar” is the “common or usual name” for “evaporated cane juice” (ECJ), an ingredient that appears on Attune’s labels, could unfairly disadvantage the plaintiffs’ case. Swearingen v. Attune Foods Inc., No. 13-4541 (U.S. Dist. Ct., N.D. Cal., Oakland Div., order entered January 28, 2015). Citing the primary jurisdiction doctrine, the court had dismissed the case without prejudice in May 2014 to await FDA guidance after the agency reopened the comment period in March of that year to determine whether sugar and ECJ are materially different substances. After the plaintiffs sought relief from the judgment, the court has now determined that FDA’s delay could unfairly disadvantage the plaintiffs if the statute of limitations prohibits…
An Arkansas federal court has dismissed with prejudice a putative class action alleging that Twinings North America, Inc. mislabeled its tea by including the statement that the product is a “natural source of antioxidants” on its packaging. Craig v. Twinings North Am., Inc., No. 14-5214 (W.D. Ark., order entered February 5, 2015). The plaintiff had argued that under the Arkansas Food, Drug, and Cosmetic Act (AFDCA), an act identical to the food labeling regulations of the U.S. Food and Drug Administration (FDA), Twinings’ tea failed to meet the nutrient level threshold—10 percent or more of the recommended daily intake—required for a claim about the nutrient content of a product. Twinings argued that the Arkansas law claims were preempted by the Federal Food, Drug, and Cosmetic Act (FDCA) and could impose liability inconsistent with federal law. To assess the preemption argument, the court considered whether the statement “natural source of antioxidants” is…
The office of California Attorney General Kamala Harris will appeal the January 2015 decision overturning the state’s ban on foie gras, according to a notice of appeal filed in California federal court. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12 5735 (U.S. Dist. Ct., C.D. Cal., notice of appeal filed February 4, 2015). The prohibition was found to impose “[m]arking, labeling, packaging, or ingredient requirements” that interfered with the free flow of poultry products in violation of the federal Poultry Products Inspection Act. The AG’s 1-page notice of appeal cited no arguments supporting its challenge. Additional details about the district court decision appear in Issue 550 of this Update. Issue 554
Let’s Buy British Imports (LBB Imports) has reportedly agreed to stop importing Cadbury chocolate made overseas pursuant to the settlement of a lawsuit in which Hershey Co. alleged that the importer violated the candy company’s trademarks and trade dress of Cadbury, Kit Kat® and other products by selling versions produced internationally. Hershey Co. v. LBB Imports LLC, No. 14-1655 (M.D. Penn., settlement date unknown). The settlement agreement apparently restricts the importation of all Cadbury chocolate as well as Kit Kat® bars, Toffee Crisps, York Peppermint Patties, and Maltesers®. Many consumers have responded negatively to the settlement terms; a campaign to boycott Hershey began on Twitter, and a MoveOn.org petition to protest Hershey’s trademark protection actions has garnered more than 25,000 signatures. The protesters reportedly argue that British Cadbury chocolate tastes better because of its ingredients—the British version of Cadbury’s Dairy Milk bar contains milk as its first ingredient while the American…
Noodles Raw Catering, owner of Chubby Noodle restaurants, has filed a lawsuit alleging that Saison Group’s Fat Noodle restaurant infringes on Noodles Raw’s trademark. Noodles Raw Catering LLC v. Saison Group LLC, No. 15-316 (N.D. Cal., filed January 22, 2015). The complaint asserts that although Chubby Noodle, which sells “high-quality, well-priced Asian-inspired” food, does not yet own a federally registered trademark in its name (because its application is pending), it has received national and international attention since its opening in 2011. Saison has been developing a Fat Noodle restaurant since 2012—as indicated by intent-to-use applications with the U.S. Patent and Trademark Office—but has not yet opened the restaurant, and its website appears to be a placeholder. Noodles Raw alleges that the logo appearing on the website is too similar to its Chubby Noodle logo because both feature “a simple, black, Asian-style bowl with noodles.” Claiming common law trademark infringement, false…
Several organizations, including the Center for Biological Diversity, Environmental Working Group and Center for Food Safety as well as the city of Berkeley, California, have filed a lawsuit against the California Department of Food and Agriculture to contest the agency’s approval of a pest management plan that allows pesticide spraying on organic farms, schools and residential yards. Envtl. Working Grp. v. Cal. Dep’t of Food and Agric., No. RG15755648 (Super. Ct. Cal., Alameda Cty., filed January 22, 2015). The groups challenge the alleged lack of evidence supporting the conclusion that the program will have no effect on Californians’ health and argue that the plan violates state environmental laws, including the requirement of public notice before spraying pesticides and the requirement to analyze the impacts on human and environmental health. A January 22, 2015, Center for Biological Diversity press release asserts that the agency received 30,000 opposition letters to the program.…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015). The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without…
A Minnesota federal court has granted in part and denied in part a motion to dismiss in a lawsuit alleging that Hormel Food Corp. stole trade secrets and breached contractual agreements in its joint venture to develop new methods of cooking bacon. Unitherm Food Sys. Inc. v. Hormel Food Corp., No. 14-4034 (D. Minn., order entered January 27, 2015). Unitherm alleged that it created the first viable method for pre-cooking sliced bacon—a process using spiral ovens and super-heated steam—and agreed to develop a commercially viable product with Hormel in June 2007. Unitherm asserted that Hormel disclosed its process, which Unitherm had not yet patented, to a rival company in violation of confidentiality agreements, which constituted an appropriation of trade secrets. The court disagreed, finding that Unitherm’s July 2009 patent application precluded its claim of trade secrets because patented processes cannot, by necessity, be trade secrets due to the disclosure of…
