A federal court in New York has denied in part and granted in part the motion to dismiss filed by the defendants to consumer-fraud litigation claiming that their Smart Balance® Fat-Free milk products with added omega-3s are misbranded because they contain 1 gram of fat from the omega-3 oil blend ingredient. Koenig v. Boulder Brands, Inc., No. 13-1186 (S.D.N.Y., order entered January 31, 2014). The court determined that the state law-based claims were not preempted by federal food labeling laws, whether the claims involve the application of milk regulations as argued by the plaintiffs or combination product requirements as argued by the defendants. Among other things, the court refused to find the defendants’ “combination products” preemption theory tenable because (i) it was based on FDA compliance policy guides, “which constitute advisory opinions”; (ii) the defendants failed to cite any FDA policy or regulations directly addressing the milk products at issue…
Category Archives Litigation
Missouri Attorney General (AG) Chris Koster has sued California AG Kamala Harris, seeking to enjoin the enforcement of a voter-approved ballot initiative (Prop. 2) and law (A.B. 1437) that will increase the size of egg-laying hen enclosures and decrease flock densities both for California producers and those in other states wishing to sell eggs in California. Missouri ex rel. Koster v. Harris, No. 14-0067 (E.D. Cal., filed February 3, 2014). According to the complaint, Missouri egg farmers will be forced under the law to “incur massive capital improvement costs to build larger habitats for some or all of Missouri’s seven million egg-laying hens, or they can walk away from the state whose consumers bought one third of all eggs produced in Missouri last year. The first option will raise the cost of eggs in Missouri and make them too expensive to export to any state other than California. The second…
According to a coalition of environmental organizations, service has been effected on the defendants to their court application challenging the legality of the Canadian government’s decision to allow AquaBounty Technologies to commercially produce genetically engineered (GE) salmon. Ecology Action Centre v. Minister of the Env’t, No. T-2114-13 (Fed. Ct., filed December 23, 2014). They contend that Minister of the Environment Leona Aglukkaq and Minister of Health Rona Ambrose failed to assess under the Canadian Environmental Protection Act whether GE salmon “could become invasive, potentially putting ecosystems and species such as wild salmon at risk.” Alleging several statutory and regulatory violations, the organizations seek a declaration that the ministers acted unlawfully and without jurisdiction, their toxicity assessment is invalid and unlawful, or they unlawfully or unreasonably failed to conduct a lawful and complete toxicity assessment. AquaBounty CEO Ron Stotish has reportedly indicated that the legal action is without merit. See Ecology Action Centre…
According to a news source, the Russian Supreme Court has denied a challenge filed by environmental groups to government Decree No. 839, which will allow the registration of genetically modified (GM) crops and products containing GM ingredients beginning July 1, 2014. Prime Minister Dmitry Medvedev signed the decree in late September 2013, and the groups filed their court challenge in December. They also wrote to President Vladimir Putin, asking for him to prohibit the cultivation of GM crops in the country. The Russian Supreme Court press service reportedly indicated that under the Code of Civil Procedure government actions “can only be contested if they are in effect and . . . give some rights and duties to citizens and legal entities at the time they are contested.” National Association of Genetic Safety Director Yelena Sharoikina reportedly said, “It turns out that the Supreme Court suggests that we should wait for…
The England and Wales Court of Appeal has dismissed the appeal filed by Chobani from a lower court’s grant of permanent injunction barring the company from selling “Greek yogurt” in the United Kingdom, finding that the court did not err in ruling that “FAGE was entitled to restrain Chobani from passing off its American made yoghurt as and for yoghurt made in Greece by the use of the description Greek yoghurt.” FAGE UK Ltd. v. Chobani UK Ltd., [2014] EWCA (Civ) 5 (decided January 29, 2014). Details about the lower court ruling appear in Issue 477 of this Update. Chobani has reportedly indicated that it intends to appeal the ruling to the Supreme Court, saying “We remain of the view that the population of the U.K. know and understand Greek yogurt to be a product description regardless of where it is made. We remain committed to the U.K. market and…
A California resident has filed a putative statewide class action against Ralphs Grocery Co., alleging that it misleads consumers by labeling its decaffeinated coffee products as “without caffeine” when they are actually, according to labeling fine print, “99.7% caffeine free.” Kopalian v. Ralphs Grocery Co., No. BC533846 (Cal. Super. Ct., Los Angeles Cty., filed January 22, 2014). The plaintiff invokes no state or federal law labeling violations, but instead claims that the labeling and packaging are “likely to confuse and mislead consumers.” He contends that he relied on the “without caffeine” labeling to make his purchase, believing that the product was 100 percent caffeine free, and chose it over other brands for this reason. Alleging breach of express warranty and violations of the state’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, the plaintiff seeks injunctive relief, including a corrective advertising campaign, actual and punitive damages, restitution,…
An unopposed motion for preliminary approval of a class-action settlement has been filed in a federal court in New York to resolve the claims of those who allegedly purchased Salmonella-contaminated pet food that was subject to a nationwide recall and purportedly linked to infections in people and animals. Marciano v. Schell & Kampeter, Inc., No. 12-2708 (E.D.N.Y., motion filed January 28, 2014. If approved, the settlement would provide $2 million cash to three subclasses of claimants: those who purchased but never used the recalled products, those who purchased and used the products and “sustained economic damages as a result of injury or death to animals from their consumption of recalled products,“ and those who purchased the products subject to recall and fully used them “with no resultant ill effects.” Under the agreement, the defendants would also continue to use improved quality control procedures for three years. Issue 511
A federal magistrate in Denver, Colorado, has sentenced Eric and Ryan Jensen, who owned the cantaloupe farm linked to a deadly Listeria outbreak in 2011, to five years of probation, with the first six months in home detention, 100 hours of community service each, and the payment of restitution—$150,000 each—with the money awarded to their victims. According to U.S. Attorney John Walsh, “No sentence of incarceration, restitution or financial penalty can undo the tragic damage done as a result of the contamination at Jensen Farms. Today’s sentence serves as a powerful reminder of farmers’ legal and moral responsibility for ensuring their product is safe.” Details about the charges to which the brothers pleaded guilty appear in Issue 498 of this Update. See U.S. Department of Justice News Release, January 28, 2014. Issue 511
Finding significant differences among the state laws applicable to a putative nationwide class action alleging injury to pets and economic damages from the purchase of dog treats containing chicken jerky from China, a federal court in California has denied the plaintiff’s request for class certification. Holt v. Globalinx Pet LLC, No. 13-0041 (C.D. Cal., S. Div., order entered January 30, 2014). According to the court, “[w]hile the Plaintiff maintains that the laws of California should apply to the proposed nationwide classes, the Defendants have catalogued a series of material differences between the consumer protection laws of several states and those of California, and crucially, this Court has already performed a case-specific conflict of law analysis and determined that Texas law would govern four of the named Plaintiff’s causes of action.” Agreeing that these differences were material, the court concluded that the proposed classes “do not meet the predominance and superiority…
A federal court in California has dismissed with prejudice a number of claims in a putative nationwide class action alleging that Gerber Products Co. misleads consumers and violates state and federal labeling laws by making certain nutrient-content and sugar-related claims on its baby food product labels. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., order entered January 15, 2014). Among the claims dismissed with prejudice were those relating to (i) products that the named plaintiff had not purchased and had failed, in her second amended complaint, to adequately allege how they are substantially similar to any of the purchased products; (ii) company website statements that the named plaintiff did not view, but that supported some of her claims; and (iii) the theory that Gerber breached a duty to disclose that its products were misbranded under federal and California law. Because the court found that Gerber’s remaining challenges in its motion…
