A New York federal court has trimmed claims in a lawsuit alleging that Arizona Beverages Co. and its parent company Hornell Brewing Co. Inc. misled consumers by labeling Arizona Fruit Snacks as "all natural" despite containing synthetic ingredients, including ascorbic acid, glucose syrup, citric acid, gelatin and dextrose. Silva v. Hornell Brewing Co. Inc., No. 20-0756 (E.D.N.Y., entered August 10, 2020). The court declined to dismiss the case on the basis that the U.S. Food and Drug Administration (FDA) holds primary jurisdiction over the issue. "First, while defining the term 'all natural' does involve technical and policy considerations, this case does not require a technical definition of 'all natural,'" the court held. "Instead, this case requires a determination of whether labeling the Product as 'all natural' is misleading to a reasonable consumer. That type of legal question is within the conventional experience of the court and does not require FDA…
Category Archives Litigation
The U.S. Trademark Trial and Appeal Board (TTAB) has determined that "gruyere" is a generic name for the type of cheese and cannot be registered as a certification mark. Int'l Dairy Foods Assn. v. Interprofession du Gruyère & Syndicat Interprofessionel du Gruyère, No. 91232427 (T.T.A.B., entered August 5, 2020). Swiss and French associations attempted to register the mark and limit its use to cheese originating from the Swiss and French region of Gruyère, but several organizations filed notices of opposition, arguing that the term is generic. TTAB agreed, finding that a large number of cheese products sold in the United States as gruyere are produced outside of the Gruyère region, and consumer understanding of the term is not tied to a specific area. Accordingly, TTAB sustained the oppositions on the grounds that "gruyere" is generic.
The Center for Food Safety and several food retailers have filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging that the agency "fell far short of fulfilling the promise of meaningful labeling" of bioengineered (BE) foods with its 2019 labeling rules. Natural Grocers v. Perdue, No. 20-5151 (N.D. Cal., filed July 27, 2020). The complaint takes issue with four aspects of USDA's BE labeling rule. First, the plaintiffs allege that allowing companies to use QR codes to disclose BE ingredients will "discriminate against major portions of the population—the poor, elderly, rural, and minorities—with lower percentages of smartphone ownership, digital expertise, or ability to afford data, or who live in areas in which grocery stores do not have internet bandwidth." The plaintiffs also object to the terminology USDA chose. The rule uses "bioengineered" rather than "genetically engineered" (GE) or "genetically modified" (GM) and prohibits the use of the latter…
A New York federal court has dismissed a putative class action alleging that Mondelez misled consumers by labeling Oreos as "always made with real cocoa" despite containing cocoa refined through an alkalizing process. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., entered July 28, 2020). The plaintiffs argued that the "representation 'real cocoa' is false, deceptive and misleading because consumers expect 'real cocoa' to indicate a higher quality cocoa than had the ingredient merely been accurately identified as 'cocoa' (minus the descriptor 'real')." "Plaintiffs do not dispute that the challenged products are in fact made with cocoa, which is fatal to their case," the court held. " Plaintiffs’ claims are trained on whether the product contains cocoa that is real, and the Oreos indisputably do contain cocoa, along with other ingredients." The court dismissed the claims with prejudice, finding the substantive issue could not be cured with better pleadings.
Several labor unions and their affiliated international union, the United Food and Commercial Workers Union (UFCW), have filed a lawsuit urging the U.S. Department of Agriculture and its Food Safety Inspection Service (FSIS) to "set aside a waiver program" for exceeding maximum line speeds on the grounds that FSIS adopted the program without adhering to procedures set forth in the Administrative Procedures Act (APA). U. Food & Comm. Workers Union, Local No. 227 v. USDA, No. 20-2045 (D.D.C., filed July 28, 2020). Under a 2014 rule, FSIS allows poultry plants to process birds at a rate of 140 birds per minute, but a 2018 waiver program allowing some plants to process up to 175 birds per minute has granted waivers to "nearly 43 percent of all plants subject to that regulation," according to the complaint. "In adopting the new waiver program, FSIS ignored concerns—raised by plaintiff UFCW and others—that increasing…
A plaintiff has filed a putative class action asserting that The Kroger Co.'s ground coffee packaging and labeling mislead consumers as to the amount of cups of coffee they can produce. Lorentzen v. Kroger Co., No. 20-6754 (C.D. Cal., filed July 28, 2020). "The scheme is straightforward," the complaint alleges. "Defendant sells the Products with the representation they contain enough ground coffee to yield a specific number of servings (e.g., 225 cups). This representation is prominently displayed on the front panel of the coffee canister. However, if the back-panel brewing instructions are followed, the canister produces significantly less than what is advertised on the front panel." For example, the plaintiff asserts, one product's labeling indicated it could be used to make "about 225 cups," but the contents would make about 110 cups if the direction of one tablespoon of coffee per six ounces of water is followed. The plaintiff seeks…
A group of workers at a Maid-Rite Specialty Foods production plant has filed a lawsuit seeking to compel the Occupational Safety and Health Administration (OSHA) to require Maid-Rite to establish procedures to mitigate the risk of COVID-19 infection. Does v. Scalia, No. 20-1260 (M.D. Penn., filed July 22, 2020). The plaintiffs allege that they face "imminent dangers posed by a workplace that has failed to take the most basic precautions to protect against the spread of COVID-19." The complaint asserts that Maid-Rite is "failing to provide cloth face coverings, configuring the production line in such a way that workers cannot social distance, failing to arrange for social distancing in other areas of the plant, failing to provide adequate handwashing opportunities, creating incentives for workers to attend work sick, failing to inform workers of potential exposures to COVID-19, and rotating-in workers from other facilities in a way that increases the risk…
A Florida federal court has dismissed a putative class action alleging that Burger King Corp. misled consumers with the release of its Impossible Whopper. Williams v. Burger King Corp., No. 19-24755 (S.D. Fla., entered July 20, 2020). The plaintiff, a vegan, argued that Burger King's marketing misled him into believing the Impossible Whopper, made with the plant-based Impossible Burger, would abide by vegan dietary restrictions, but the patty was cooked on the same grill as meat patties. The court disagreed, finding that "Burger King promised a non-meat patty and delivered with the 'Impossible Burger.'" "Plaintiffs’ argument, however, loses momentum when they claim there was a presumption the 'Impossible' patties would be cooked on a different grill than other items sold at Burger King," the court held. "This is not an essential term of the contract. Furthermore, as Burger King’s slogan has boasted for forty years, Plaintiffs’ could have 'Had it [their] way'…
A California court has reportedly ruled that Californians can buy foie gras from out-of-state sellers and have it delivered within the state to avoid the state's ban on sales or gifts of foie gras. The ruling applies only to individual purchasers, as restaurants and retailers are still prohibited from selling foie gras, according to the Associated Press. “There is no principled way to distinguish between foie gras purchased out of state and transported into California by the purchaser and that which is delivered by a third party,” the court reportedly held.
The U.S. Court of Appeals for the Second Circuit has sided with an objector to a class settlement in a lawsuit alleging that Barilla USA pasta boxes contained too much slack fill. Berni v. Barilla S.p.A., No. 19-1921 (2nd Cir., entered July 8, 2020). The lawsuit asserts that Barilla reduced the amount of pasta in its box packaging but retained the same size of box, allegedly misleading consumers. The parties reached a settlement that included payments to class counsel and the named representative along with an agreement to update the packaging to include a “fill line” to indicate how much pasta the box contains. A class member objected to the settlement, arguing that the only relief the class received was injunctive relief, and a class of past purchasers could not be certified for injunctive relief. The district court rejected the objector’s assertion, but the Second Circuit disagreed with the lower…
