A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update. The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state…
Category Archives Litigation
A multidistrict litigation (MDL) court in New York has granted in part the motion to dismiss filed in a putative class action alleging that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural” when they contain genetically modified organisms (GMOs). In re Frito-Lay N. Am., Inc. All Natural Litig., MDL No. 2413 (E.D.N.Y., order entered August 29, 2013). The court dismissed PepsiCo, Inc. from the litigation without prejudice, finding that the complaint failed to allege sufficient facts to support its liability. Among other matters, the court refused to dismiss the suit on the basis of (i) the primary jurisdiction doctrine (noting that the issues do not require specialized knowledge to resolve and that “the FDA [Food and Drug Administration] is unlikely to respond in a timely manner to any referral from this Court”), (ii) preemption (finding that FDA’s…
A former non-exempt Anheuser-Busch brewery worker in California has filed a putative class action against the company alleging that it violated the state labor code by failing to include the value of free or discounted beer—termed “incentive pay”—in employees’ regular pay rates and thus undercompensated them by calculating overtime pay on the basis of pay rates that were too low. Controulis v. Anheuser-Busch, LLC, No. BC518518 (Cal. Super. Ct., Los Angeles Cty., filed August 16, 2013). The plaintiff also claims that the company failed to timely provide a final paycheck when employees were discharged or quit. According to the complaint, the plaintiff was terminated during the year preceding the complaint’s filing while he was on a leave of absence. Seeking to certify several classes of California employees, the plaintiff alleges failure to pay overtime wages, wage statement violations, waiting time penalties, unfair competition (that is, by underpaying its employees, the…
A federal court in California has dismissed putative nationwide class claims against The Hain Celestial Group alleging that the company’s food and beverage product labels and website mislead consumers because they (i) list the ingredient “Evaporated Cane Juice” or “Organic Evaporated Cane Sugar Juice,” (ii) are falsely labeled “All Natural” or “Only Natural,” and (iii) falsely claim to have “No Trans Fat” or other nutrient content claims. Smedt v. The Hain Celestial Group, Inc., No. 12-3029 (N.D. Cal., San Jose Div., order entered August 16, 2013). The court dismissed the statutory warranty claims with prejudice on the grounds that the food products are consumables and not covered under the state and federal laws and because food and beverage labels “do not constitute express warranties against a product defect.” The court dismissed the fraud-related claims with leave to amend within 15 days, finding that the amended complaint failed to “unambiguously specify the…
A federal court in California has dismissed a putative statewide class action alleging that Tetley USA misleads consumers by making “antioxidant, nutrient content, and health claims” for certain of its tea products; the statutory warranty claims were dismissed with prejudice, and the remaining claims were dismissed with leave to amend the complaint to comply with the plausibility pleading standard. De Keczer v. Tetley USA, Inc., No. 12-2409 (N.D. Cal., order entered August 16, 2013). According to the court, while the plaintiff acknowledged that the products at issue were consumables under the Song-Beverly Consumer Warranty Act, he “appears to argue that the product labels constitute express warranties and that the products in question therefore fall under the provisions of section 1793.35, which provides for the enforcement of express warranties on consumables. The Court rejects this argument because food labels, like the ones at issue, do not constitute express warranties against a…
A federal court in the District of Columbia will consider on August 27, 2013, whether to issue a preliminary injunction to stop the U.S. Department of Agriculture (USDA) from implementing country-of-origin labeling (COOL) program changes required by a 2011 World Trade Organization (WTO) determination that, as initially drafted, the rules gave less favorable treatment to cattle and hogs imported from Canada and Mexico. Am. Meat Inst. v. USDA, No. 13-1033 (filed July 8, 2013). Information about the revised COOL rule appears in Issue 485 of this Update. A number of meat-processing interests, including the American Meat Institute, Canadian Cattlemen’s Association, Confederación Nacional de Organizaciones Ganaderas, National Cattlemen’s Beef Association, and National Pork Producers Council, challenged the new rule alleging that it violates First Amendment rights under the U.S. Constitution, exceeds USDA’s authority and violated the Administrative Procedure Act. In early August, the U.S. Cattlemen’s Association (USCA), National Farmers Union, American…
In the first investigation subject to a pilot program, the International Trade Commission (ITC) has agreed with an administrative law judge (ALJ) that a company alleging infringement of its patents for laminated packaging by the importers of liquor, wine, toys, electronics, and cosmetics failed to show that it had a domestic industry that would be harmed by the alleged infringement. In re Certain Prods. Having Laminated Packaging, & Components Thereof, No. 337-TA-874 (ITC, decided August 6, 2013). Several alleged infringers, including Camus Wine & Spirits Group of Cognac, France, were terminated from the investigation before it was resolved on the basis of settlement agreements with claimant Lamina Packaging Innovations, Inc. of Longview, Texas. ITC has the authority to bar imports of products deemed harmful to a domestic industry and announced earlier this year that it would test expedited procedures in cases alleging unfair practices in import trade. Under the program, ITC…
A federal court in California has issued an order granting the motion for preliminary approval of a class settlement in five lawsuits alleging that Naked Juice Co. misrepresented its beverages as “All Natural” and “Non-GMO.” Pappas v. Naked Juice Co. of Glendora, Inc., No. 11 8276 (C.D. Cal., order entered August 7, 2013). According to the court, the proposed settlement was reached after the defendant’s motion to dismiss was granted in part, extensive and contentious discovery was undertaken, and four mediation sessions occurred under the guidance of an experienced retired judge. Under the terms of the settlement, the company will pay $9 million into a settlement fund that will be used to make cash payments to class members and pay the costs of notice and settlement administration, attorney’s fees—not to exceed $3.1 million—and expenses, and incentive awards $2,500 each for four of the five named plaintiffs. Class members with purchase receipts…
Four years after filing a citizen petition with the U.S. Food and Drug Administration (FDA) seeking a prohibition on the use of partially hydrogenated oils containing artificial trans fat in food for human consumption, 98-year-old University of Illinois Emeritus Professor of Comparative Biosciences Fred Kummerow has filed a lawsuit seeking an order compelling an agency response to his petition and a declaration that its failure to ban trans fats violates the Food, Drug, and Cosmetic Act. Kummerow v. Hamburg, No. 13-2180 (C.D. Ill., filed August 9, 2013). The complaint details the history of the ingredient’s invention and research, including the plaintiff’s own, demonstrating its “harmful effects,” including inhibition of an enzyme necessary to prevent blood clots in the arteries and veins. The plaintiff also distinguishes between artificial and natural trans fats, noting that he does not seek a ban on the latter. According to the complaint, Kummerow learned in 2004…
A Florida resident has filed a putative statewide class action against Gruma Corp., alleging that the company falsely advertises its Mission® Restaurant Style Tortilla chip products as “all natural” when they contain genetically modified organisms (GMOs). Griffith v. Gruma Corp., No. 13-80791 (S.D. Fla., filed August 12, 2013). Alleging violations of the Florida Deceptive and Unfair Trade Practices Act and contending that her claims “mirror the labeling, packaging, and advertising requirements mandated by federal regulations and laws,” the plaintiff claims that the products are misbranded and the labels are false and misleading because GMOs are not natural and she understood that product representation to mean that the chips contained no GMO ingredients. Alleging damages in excess of $5 million, the plaintiff seeks injunctive relief, restitution, disgorgement, actual damages, attorney’s fees, costs, and interest.
