A plaintiff has alleged that Frito-Lay North America Inc. fails to include a mandated front-of-package disclosure that its Cheddar and Sour Cream chips are flavored with artificial flavoring. Ithier v. Frito-Lay N. Am. Inc., No. 20-1810 (S.D.N.Y., filed March 1, 2020). The complaint asserts that "[b]ased on flavor composition analysis of the Products, the artificial flavor consists of compounds associated with butter flavor," and "butter flavor is known as enhancing and boosting the flavor of cheddar cheese." Thus, according to the plaintiff, the flavor of the chips should be listed as "Artificially Flavored Cheddar & Sour Cream." The plaintiff alleges fraud, unjust enrichment, negligent misrepresentation, breach of warranties and a violation of New York's consumer-protection statute, and he seeks class certification, injunctive relief, damages and attorney's fees.
Category Archives Litigation
A New York federal court has dismissed a lawsuit alleging that BEF Foods Inc. misleadingly marketed its Bob Evans mashed potatoes as containing butter. Sarr v. BEF Foods, No. 18-6409 (E.D.N.Y., entered February 13, 2020). The lawsuit alleged that the packaging promised "real butter" and "fresh potatoes" despite containing vegetable oil and preservatives. The court found that the product's ingredient list disclosed that the mashed potatoes contained both vegetable oil and butter, with butter as the more predominant ingredient. The court was also unpersuaded on the "fresh potatoes" point. "No reasonable consumer would conclude that the phrases 'Made with Fresh Potatoes' and 'Made with 100% Fresh Potatoes' [] imply that the finished Mashed Potatoes product itself was 'just prepared' or lacking preservatives," the court held. "BEF's representations unambiguously mean that the potatoes used as an ingredient in the Mashed Potatoes were fresh when so incorporated."
A California federal court has granted certification to a class of consumers who purchased honey from one of the brands produced by the Sioux Honey Association who believed the honey to be "pure" or "100% pure. Tran v. Sioux Honey Ass'n, No. 17-0110 (C.D. Cal., entered February 24, 2020). The plaintiff asserts that the honey is not "pure" because it contains traces of glyphosate. The court assessed the plaintiff's claims and found that they met the certification requirements of numerosity, commonality and typicality; further, she was found to be an adequate representative of the proposed class. Accordingly, the court certified a class of California residents who have purchased a Sue Bee honey product since January 2014.
A lawsuit challenging the ingredients in LaCroix sparkling water has been dismissed with prejudice by the plaintiffs. Rice v. Nat'l Beverage Corp., No. 18-7151 (N.D. Ill., E. Div., entered February 18, 2020). National Beverage Corp. reportedly shared a letter with the media about the voluntary dismissal, stating that a laboratory cited in the complaint confirmed that it had not, as alleged, determined that the ingredients in LaCroix were not natural. "That laboratory has since confirmed in writing and separately under oath that its testing could not, and did not, determine whether the ingredients were 'synthetic' and made no finding as to the source of the ingredients it identified." The letter reportedly also asserts that the plaintiff was provided results from a different laboratory, "which confirmed that LaCroix's flavor ingredients are 100% natural and free of any 'synthetic' sources."
A California federal court has rejected a settlement in a lawsuit that alleged Kellogg Sales Co. misled consumers by marketing its products as "healthy." Hadley v. Kellogg Sales Co., No. 16-4955 (N.D. Cal., San Jose Div., entered February 20, 2020). The court found the settlement agreement to be invalid for several reasons: (i) "the release of the claims is overbroad"; (ii) the parties did not show that certification was appropriate; (iii) the parties failed "to provide sufficient information to justify a proposed reversion to Kellogg"; (iv) several forms associated with class participation contained errors; and (v) the "settlement structure is currently inconsistent with the fact that the voucher portion of the settlement constitutes a coupon settlement under the Class Action Fairness Act." Shook Partner Lindsey Heinz and Associate Elizabeth Fessler wrote an article for Law360 on the settlement when it was announced in late 2019, focusing on the lessons companies…
The Swiss Federal Administrative Court has reportedly ruled that Jägermeister can use its logo, "a stag with a shining white cross between its antlers," on a variety of products in Switzerland because it is not offensive to religion. The Swiss Federal Institute of Intellectual Property had argued for a restriction on the use of the logo, asserting that the "image was offensive to the religious leanings of some consumers," according to Swiss Info. The court reportedly disagreed, finding that consumers associate the logo with Jägermeister rather than the story of St. Hubert that inspired the logo.
Miyoko's Kitchen Inc. has filed a lawsuit asserting that California infringed its First Amendment right to free speech by requiring the removal of "truthful messages and images from its website and its product labels—including the phrase '100% cruelty and animal free,' the use of the word 'butter' in the phrase 'vegan plant butter,' and even an image of a 'woman hugging a cow.'" Miyoko's Kitchen v. Ross, No. 20-0893 (N.D. Cal., filed February 6, 2020). The company reportedly received a letter from California in December 2019 that "orders Miyoko's to remove claims that its vegan products are '100% cruelty and animal free,' 'cruelty free,' and 'lactose free'—all entirely truthful statements." "For decades, plant-based producers have used terms like 'vegan cheese,' 'soy milk,' and 'cashew yogurt,'" the complaint asserts. "Consumers are not confused by these labels. In fact, plant-based dairy terms are so widely used that the [U.S. Food and Drug…
A California appeals court has determined that the "no sugar added" phrasing on Califia Farms' Cuties tangerine juice does not imply to consumers that competitors add sugar to their products. Shaeffer v. Califia Farms LLC, No. B291085 (Cal. App. Ct., entered February 6, 2020). The lower court dismissed the complaint, ruling that the "no sugar added" representation was truthful. The appeals court considered "statements a business affirmatively and truthfully makes about its product and which do not on their face mention or otherwise reference its competing products at all." The court found that a "statement may be 'fraudulent' (and hence actionable) if it is 'deceptive and misleading in its implications,'" but declined to hold as actionable truthful statements about a company's own product when the argument is that a reasonable consumer would "(1) likely to infer from such a statement that the very same statement is untrue as to comparable,…
A consumer has filed a putative class action alleging Tipp Distributors Inc. mislabels its Steaz iced tea as "lightly sweetened" despite containing "objectively high amounts of sugar, as added sugar." Taylor v. Tipp Distrib. Inc., No. 20-0712 (E.D.N.Y., filed February 9, 2020). Consumers paid a premium for Steaz believing it to contain less sugar than its competitors, the complaint asserts, but it contains 20 grams of added sugar, 40% of the recommended daily intake. "By consuming the Products and the 40% DV of added sugar, the average person who wishes to follow the DGA must consume no more than 30 grams of sugar across 1,920 calories (2,000 calories – 80 calories)," the plaintiff argues. "It will be difficult to impossible for the average, reasonable consumer to not consume more than 30 grams of sugar in everything else they eat or drink because many foods and beverages have added sugars, albeit…
Hornell Brewing Co. Inc. and its subsidiary Arizona Beverage Co. allegedly misrepresent their fruit snacks product as all natural despite containing citric acid, gelatin, ascorbic acid, dextrose, glucose syrup and modified food starch, a consumer alleges. Silva v. Hornell Brewing Co. Inc., No. 20-0756 (E.D.N.Y., filed February 11, 2020). The plaintiff argues that these ingredients are synthetic and cites a 2013 U.S. Department of Agriculture draft guidance decision delineating what materials are natural or synthetic. "Congress has defined 'synthetic' to mean 'a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plants, animals, or mineral sources," the complaint argues. Further, "[s]urveys and other market research, including expert testimony Plaintiff intends to introduce, will demonstrate that the term 'natural' is misleading to a reasonable consumer because the reasonable consumer believes that the term “natural,” when used to…
