In a January 6, 2014, letter, the U.S. Food and Drug Administration (FDA) responded to three federal courts that stayed litigation involving whether food companies deceive consumers by labeling products with genetically modified (GM) ingredients as “natural,” stating that it would not make a determination on the issue to resolve a private litigation-related request. Cox v. Gruma Corp., No. 12-6502 (N.D. Cal.); Barnes v. Campbell Soup Co., No. 12-5185 (N.D. Cal.); In re General Mills, Inc. Kix Cereal Litig., No. 12-0249 (D.N.J.). Describing the complexities of determining what “natural” means in both a broad and narrow context and the variety of stakeholder interests involved, FDA stated that if it “were inclined to revoke, amend, or add to [current] policy, we would likely embark on a public process” and would have to involve other agencies such as the U.S. Department of Agriculture. Because the agency is devoting significant resources to Food Safety Modernization Act…
Category Archives Litigation
A federal court in California has granted in part the motion for summary judgment filed by Twinings North America in a putative class action alleging that the company misbrands its tea products by stating that they are a “Natural Source of Antioxidants” and “a natural source of protective antioxidants." Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered January 6, 2014). Regarding the plaintiff’s claims that the company’s labels imply protection from disease, the court found the product representations “too general to relate to a ‘health-related condition’” and thus dismissed these claims. As to causation, the issue was whether the plaintiff admitted in her deposition that she did not rely on the green tea and Earl Grey tea labels or the company’s website when making her purchasing decisions. The court refused to read her deposition transcript as narrowly as the company urged and found that the label…
A federal court in California has granted in part the motion for summary judgment filed by Bumble Bee Foods in a putative class action alleging that certain labeling claims either deceived consumers or violate state and federal law. Ogden v. Bumble Bee Foods, LLC, No. 12 1828 (N.D. Cal., order entered January 2, 2014). Information about the complaint is included in Issue 436 of this Update. The court agreed with Bumble Bee that the plaintiff failed to raise a genuine issue of material fact regarding her standing to pursue consumer-fraud claims based on the company’s purported statements about vitamin A and iron, because those statements were made on the nutrition information panel, which the plaintiff “does not claim to have read in connection with purchasing the product.” Other similar statements appeared on the company’s Website, and “Ogden concedes that she did not visit this website prior to purchasing the Sardines Mediterranean…
A federal court in California has dismissed with prejudice the second amended complaint in a putative class action alleging that Wrigley Sales Co.’s chewing gum and candy products are misbranded because the labels state that they are “sugar free.” Gustavson v. Wrigley Sales Co., No. 12-1861 (N.D. Cal., decided January 7, 2014). The court determined that the product labels do not violate federal regulations, the plaintiff failed to adequately plead her alleged regulatory violations, and the plaintiff “is attempting to impose a labeling requirement that is ‘not identical to’ federal requirements.” Thus the court ruled that the “sugar free” component of the complaint was preempted and any further amendment of the complaint would be futile. The court dismissed the remainder the complaint relating to the defendant’s alleged failure to disclose that the products “are sweetened with nutritive and non-nutritive sweeteners or to detail the percentage of the product that nonnutritive…
A federal court in Oklahoma has dismissed, without leave to amend, claims filed against the company that audited Jensen Farms before a 2011 Listeria outbreak sickened dozens of consumers, including the plaintiff, who allegedly contracted listeriosis from the strain linked to the farm’s cantaloupe and was hospitalized for a month. Underwood v. Jensen Farms, No. 11-348 (E.D. Okla., decided December 31, 2013). Auditor Primus Group, Inc. allegedly gave the farm a “superior” rating and 96-percent score after a July 25, 2011, audit, and the plaintiff became ill on September 2. The court determined that the plaintiff could not show that the auditor owed him a duty under Oklahoma law because “the connection between the July 25, 2011, audit and the onset of Plaintiff’s illness [was] too remote in both time and circumstance. Significantly, Plaintiff has failed to plead facts sufficient to establish that the contaminated cantaloupe would not have been…
A federal court in California has denied the plaintiff’s motion for class certification in a suit alleging that Ben & Jerry’s Homemade deceives consumers by using “all natural” on labels for ice cream, frozen yogurt and popsicle products that contain alkalized cocoa. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided January 7, 2014). Additional details about the lawsuit appear in Issue 366 of this Update. The action followed the court’s September 2012 denial of final approval for a class-action settlement in the case on the basis of issues raised by Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012). Among other matters, the court agreed with the defendant that the plaintiff failed to establish that the class was ascertainable and that common issues predominate over individual issues. While the case was initially brought on behalf of a nationwide class of consumers, in its current posture, a…
Addressing a question of first impression, a California appeals court has dismissed a putative class action alleging that Herb Thyme Farms mislabeled its certified organically grown herbs as “USDA Organic” because the contents included a mix of organically and conventionally grown herbs. Quesada v. Herb Thyme Farms, Inc., No. B239602 (Cal. Ct. App., 2d Dist., Div. 3, decided December 23, 2013). According to the court, on appeal, the plaintiff changed her theory of liability from alleged violations of state consumer protection laws to violation of the California Organic Products Act of 2003, a federally approved state organic program. She cited Farm Raised Salmon Cases, 42 Cal. 4th 1077 (2008), to counter the trial court’s conclusion that her claims were preempted under federal law. Distinguishing Farm Raised Salmon Cases, the court was guided instead by Aurora Dairy Corp. Organic Milk Marketing & Sales Practices Litigation v. Aurora Organic Dairy, 621 F.3d 781…
Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
A federal court in California has dismissed, without prejudice, the action for declaratory and injunctive relief brought against the San Francisco city attorney, seeking to halt his investigation of Monster Beverage’s energy drinks and efforts to regulate their formulation, labeling and promotion. Monster Beverage Corp. v. Herrera, No. 13-0786 (C.D. Cal., decided December 16, 2013). Additional information about the lawsuit appears in Issue 482 of this Update. The matter was before the court on the city attorney’s renewed motion to dismiss. Essentially, the court determined that the Younger abstention doctrine, which “counsels federal-court abstention when there is a pending state proceeding,” applied because a state action brought by the city attorney is pending, the action implicates important state interests, not all of the city attorney’s claims are preempted under federal food-labeling laws, and the state proceedings will be adequate for the consideration of Monster’s constitutional claims. Details about the city…
The Seventh Circuit Court of Appeals has determined that Phusion Projects’ commercial liability insurance carriers have no duty to defend the company in actions alleging that intoxication attributable to consumption of its Four Loko® alcoholic product caused death and personal injury. Netherlands Ins. Co. v. Phusion Projects, Inc., No. 12-1355 (7th Cir., decided December 16, 2013). Applying Illinois law, the court ruled that the liquor liability exclusions in the relevant insurance contracts unambiguously excluded coverage for bodily injury or property damage when the company “may be held liable by reason of: (1) causing or contributing to the intoxication of any person.” So ruling, the court affirmed the lower court’s grant of the insurance carriers’ motion for summary judgment. Issue 508
