As anticipated, Quality Egg LLC and its former owners, Austin “Jack” DeCoster and his son Peter, have entered guilty pleas to charges of introducing adulterated food into interstate commerce. Additional information about the plea agreement appears in Issue 524 of this Update. They admitted that the company’s shell eggs, shipped to buyers in states throughout the country, contained Salmonella in 2010. As part of the plea agreement, the company reportedly agreed to pay a $6.8 million fine. The DeCosters, who will remain free on bail pending sentencing, face a maximum sentence of up to one year in prison or five years’ probation. Sentencing has not yet been scheduled. See USA Today, June 3, 2014. Issue 525
Category Archives Litigation
The Center for Science in the Public Interest (CSPI) has filed a complaint against the U.S. Department of Agriculture and Food Safety and Inspection Service, seeking a declaration that the agencies have unreasonably delayed taking action on its May 2011 petition requesting that certain strains of antibiotic-resistant (ABR) Salmonella in ground meat and poultry be declared adulterants. CSPI v. Vilsack, No. 14-895 (D.D.C., filed May 28, 2014). Details about CSPI’s petition appear in Issue 396 of this Update. According to the nutrition and health advocacy organization, if these pathogens are declared adulterants, affected meat and poultry products would be barred from entering commerce, and the action “would also confirm the agency’s authority to request without evidence of illness that a company recall products containing ABR Salmonella, or—in the absence of a company’s voluntary compliance—to detain and seize those products.” The complaint refers to a number of Salmonella outbreaks, some involving…
A California federal court has certified a class of California consumers who allege that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Werdebaugh v. Blue Diamond Growers, No. 5:12-cv-2724 (N.D. Cal., order entered May 23, 2014). The court granted plaintiff Chris Werdebaugh’s motion for certification of the California class but rejected his request for nationwide certification because he had not shown that California had any interest that outweighed the interests of other states in determining their own policies. Werdebaugh argued that the “All Natural” label on Blue Diamond’s almond milk is misleading because the product contains chemical preservatives, synthetic chemicals and added artificial color, and the label also lists ECJ as an ingredient when sugar is the common name as required by the U.S. Food and Drug Administration (FDA). The court ruled…
A federal court in California has granted in part and denied in part the motion to dismiss in a putative class action alleging that Whole Foods Market Group misleads consumers by labeling certain food products containing sodium acid pyrophosphate (SAPP) as “All Natural.” Garrison v. Whole Foods Mkt. Group, Inc., No. 13-5222 (N.D. Cal., order entered June 2, 2014). Additional information about the complaint appears in Issue 504 of this Update. The court ruled that (i) the claims were not preempted under federal law; (ii) the primary jurisdiction doctrine did not apply (given the lack of a clear indication that the U.S. Food and Drug Administration intended to revisit its decision not to adopt formal regulations as to the meaning of “natural”); (iii) the plaintiffs sufficiently pleaded a cause of action (with the exception of allegations pertaining to marketing in various media and advertising—these claims were dismissed with leave to amend);…
A federal court in California has certified a nationwide class of consumers as to the injunctive relief requested in litigation against Dole Packaged Foods regarding its labeling claims that certain fruit products are “All Natural” despite the presence of ascorbic acid and citric acid, but limited the damages class to California consumers and the number of products at issue. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered may 30, 2014). Dismissed with prejudice were Dole products and label statements in the second amended complaint for which the named plaintiff did not move for class certification. An earlier ruling narrowing the claims is discussed in Issue 498 of this Update. Among other matters, the court disagreed with Dole’s argument that the class could not be ascertained because company records identifying purchasers or the products they purchased do not exist and further…
A California federal court has dismissed a putative class action against Diamond Foods Inc. alleging that its Kettle tortilla chips are mislabeled as “All Natural” despite containing synthetic ingredients. Surzyn v. Diamond Foods Inc., No. 14-cv-136 (N.D. Cal., order entered May 28, 2014). Citing a lack of basic factual assertions such as which product was the subject of the lawsuit, the court granted plaintiff Dominika Surzyn leave to amend within 21 days. Diamond Foods argued that its “All Natural” label is not misleading within the context of the rest of the packaging, which lists some of the ingredients—maltodextrin and dextrose—at issue in the case, and cited a Federal Trade Commission (FTC) determination that consumers’ understanding of “natural” is context-specific. The court rejected Diamond Foods’ assertions, finding that FTC had reached its conclusion not to dismiss any meaning and implication of the world “natural” but to decline to offer guidance on the…
A multidistrict litigation (MDL) court in Ohio has dismissed with prejudice six putative class actions involving plaintiffs from California, Colorado, Florida, New Jersey, Ohio, Pennsylvania, and Texas, alleging that Anheuser-Busch “routinely and intentionally adds extra water to its finished product to produce malt beverages that ‘consistently have significantly lower alcohol content than the percentages displayed on its labels.’” In re Anheuser-Busch Beer Labeling, Mktg. & Sales Practices Litig., MDL No. 13-2448 (N.D. Ohio, order entered June 2, 2014). Additional details about the litigation and the order consolidating the cases appear in issues 473 and 487 of this Update. Federal regulations allow malt beverages containing 0.5 percent or more alcohol by volume a tolerance of 0.3 percent in the alcohol content, “either above or below the stated percentage of alcohol,” and the affected jurisdictions have adopted or refer to these regulations in their statutes and regulations. The defendant argued in its motion…
A Papa John’s customer has filed a putative class action against the pizza company in Illinois state court, alleging that the chain illegally charges sales tax on delivery fees, resulting in each delivery customer overpaying by $0.16. Zucker v. Papa John’s Int’l, Inc, No. 14-668 (Madison Cty. Ct., filed May 5, 2014). Zachary Tucker argues that Illinois sales tax may be imposed only on the total sales price of tangible property, excluding the delivery fee, so long as the actual cost of delivery is less than the amount of the delivery fee. As a result, the complaint alleges, Papa John’s has violated and continues to violate the Uniform Deceptive Trade Practices Act (UDTPA), an Illinois consumer protection statute. In addition to class certification, Tucker seeks a cease-and-desist ruling to prevent Papa John’s from continuing to charge sales tax on delivery fees in Illinois, as well as damages for negligence, breach of…
Frank Magliato, “in his capacity as stockholder representative for the former shareholders of Natural Balance Pet Foods,” has reportedly filed a lawsuit against H.J. Heinz Co., alleging that the food company knowingly sold processed sheep lungs adulterated with rubber rings to Natural Balance. The complaint alleges that while Heinz knew both that the rubber rings had been lodged in internal organs of the sheep and that the rings could be hazardous to animals, the company did not alert Natural Balance or its customers to the potential danger. According to Magliato, Natural Balance recognized that the food was adulterated before selling the products, but had it not, Heinz’s negligence could have exposed the pet food company to litigation and damaged its reputation. Magliato seeks disgorgement of ill-gotten gains, restitution and $400,000 in damages for strict products liability, breach of express and implied warranty, negligence, unfair business practices and fraud, as well…
Stewart Parnell, former president of the Peanut Corp. of America (PCA), linked to a 2008-2009 nationwide Salmonella outbreak that allegedly killed nine who consumed products made with the company’s tainted peanut paste and injured some 700 others, has filed a motion asking the court to exclude “all evidence related to any alleged illness or death” during his criminal trial. United States v. Parnell, No. 13-cr 12 (M.D. Ga., motion filed May 20, 2014). Observing that the government’s pleaded harm “consists of monetary harm to the customers and individuals named” and that the entire case is “premised on the alleged wrongful conduct of obtaining money by false pretenses,” Parnell argues that victim-impact evidence is irrelevant and would be highly prejudicial. In this regard, he states, “[T]he only purpose for introducing evidence of salmonella-related illness and death is to inflame the jury in an effort to suggest a decision on an improper basis.”…
