According to a news source, the New York Court of Appeals, the state’s highest court, has agreed to hear New York City’s appeal of a decision striking down a board of health rule that would have imposed caps on the size of sugar-sweetened beverages sold at certain venues. Details about the intermediate appellate court opinion affirming a lower court’s invalidation of the rule under separation-of-powers principles appear in Issue 492 of this Update. Mayor Michael Bloomberg responded to the court’s ruling by stating, “The related epidemics of obesity and diabetes are killing at least 5,000 New Yorkers a year and striking hardest in black and Latino communities and low-income neighborhoods. New York City’s portion cap rule would help save lives, and we are confident the appeals court will uphold the Board of Health’s rule.” The case is expected to be argued after January 1, 2014. See Law360, October 17, 2013.…
Category Archives Litigation
A California state court has denied the defendant’s request that it stay a case alleging that the company failed to warn consumers of the presence of lead in its snack bars in contravention of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Research Ctr., Inc. v. Clif Bar & Co., No. 13-532935 (Cal. Super. Ct., San Francisco Cty., minutes entered October 16, 2013). Additional details about the suit appear in Issue 492 of this Update. Clif Bar & Co. sought the stay pending the outcome of an appeal from an August 2013 determination that Dole Food Co., Gerber Products Co. and other food makers were not required to warn consumers about lead occurring naturally in their products at levels lower than the state threshold. According to the company, it would waste time and money to proceed in a case that has already cost millions to…
The Judicial Panel on Multidistrict Litigation (JPML) has ordered the transfer of five cases brought by wheat farmers who allege economic injuries due to lower wheat prices, import restrictions and increased production costs after genetically engineered (GE) wheat was discovered in an Oregon farmer’s field; pretrial matters will be heard by a multidistrict litigation (MDL) court in Kansas. In re Monsanto Co. GE Wheat Litig., MDL No. 2473 (J.P.M.L., decided October 16, 2013). According to the court, the actions involve common questions of fact, and centralization in Kansas “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions share factual questions arising from Monsanto’s conduct with respect to the development and field testing of genetically-engineered [sic] ‘Roundup Ready’ wheat from 1998 through 2005, and the alleged discovery of the Roundup Ready herbicide-resistant gene in wheat plants on an Oregon…
A Florida resident has filed a complaint on behalf of a putative class against Anheuser-Busch Cos. (AB), claiming that since the company began producing Beck’s Beer in the United States in 2012, it has misled consumers into believing that the product is still imported from Germany where it was made with quality ingredients for more than 225 years. Marty v. Anheuser-Busch Cos., LLC, No. 13-23656 (S.D. Fla., filed October 9, 2013). According to the complaint, external packaging material does not indicate that the product is brewed in the United States with domestic ingredients, including Missouri River water. Rather, the external packaging for six- and 12-packs allegedly states that the product is “German Quality” beer “brewed under the German Purity Law of 1516” and that it “Originated in Bremen, Germany.” Individual bottles, however, state “in obscure white text on a silver background, ‘Product of USA—Brauerei Beck & Co.—St. Louis, MO.—12 FL. OZ.’”…
A federal court in California has denied the request of General Mills, Inc. to stay the proceedings in three putative class actions alleging that it misleads consumers by promoting various products as “100% Natural” given ingredients that are genetically modified or highly processed, such as high-fructose corn syrup, high-maltose corn syrup and maltodextrin. Rojas v. General Mills, Inc., No. 12-5099 (N.D. Cal., order entered October 9, 2013); Bohac v. General Mills, Inc., No. 12-5280, and Janney v. General Mills, Inc., No. 12-3919 (N.D. Cal., orders entered October 10, 2013). So ruling, the court rejected the defendant’s request that it apply the primary jurisdiction doctrine, finding that (i) the issue of whether a reasonable consumer would be misled by the company’s product promotions was within the court’s purview, and (ii) it did not appear the U.S. Food and Drug Administration was inclined to decide anytime soon what the term “natural” encompasses. In Rojas,…
A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
A federal court has dismissed without prejudice the first amended complaint filed in a putative class action alleging that Weight Watchers International misleads consumers by misrepresenting the number of calories in its line of diet ice cream bars. Burke v. Weight Watchers Int’l, Inc., No. 12-6742 (D.N.J., decided October 17, 2013). While the court held that it was premature to decide whether the plaintiff had standing to bring claims as to diet bars she did not purchase, persuaded by other courts that this was more properly decided at the class certification stage, it agreed with the defendants that the state law-based claims were preempted. The Food and Drug Administration has set forth the five methods that can be used to calculate the total number of calories in a food product labeled with that information. In the court’s view, “Burke’s claims are preempted because she has failed to plead two separate…
A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
The World Trade Organization (WTO) has reportedly established a compliance panel at the request of Canada and Mexico in an ongoing dispute over the U.S. country-of-origin (COOL) meat labeling rules. Canada’s International Trade Minister Ed Fast and Agriculture Minister Gerry Ritz applauded the WTO action, saying that the United States must “respect its international trade obligations and put an end to mandatory Country of Origin labeling.” Canada argues that recent changes to the COOL implementing regulations did not bring them into conformity with WTO obligations. Because the compliance panel consists of the original members who found that the U.S. law was unfair to foreign meat producers, the Canadian officials suggest that the process will be accelerated. If the challenge succeeds, “which may include an appeal to the WTO Appellate Body, Canada could seek authorization from the WTO to impose retaliatory tariffs on U.S. imports.” Meanwhile, meat and livestock organizations that…
An Illinois appeals court has reversed a trial court determination that Illinois would not be an inconvenient forum for the defendants in a wrongful death lawsuit filed by the parents of a 15-year-old boy who allegedly drank two cans of the alcohol energy drink Four Loko and was killed on a Virginia highway after becoming disoriented. Rupp v. Phusion Projects, LLC, No. 1-12-2056 (Ill. App. Ct., order entered September 27, 2013) (not precedential). Additional information about the lawsuit appears in Issue 395 of this Update. According to the appeals court, while the trial court correctly weighed most of the private-interest factors presented, it should have considered the defendant’s choice-of-law issue under the public-interest factor analysis. The appeals court also found that the trial court erred in stating that other defendants had not joined Phusion’s forum non conveniens motion, because the record showed that they had done so. And finally, the…
