The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
Category Archives Litigation
The U.S. Food and Drug Administration (FDA) has filed a motion for reconsideration or stay of a court order establishing rulemaking deadlines under the Food Safety Modernization Act. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., Oakland Div., motion filed July 19, 2013). More information about the litigation appears in Issues 481, 487 and 489 of this Update. Scheduled to be heard on August 28, 2013, the motion contends that two of the seven rulemakings at issue, the sanitary transport rule and the intentional adulteration rule, pose challenges that preclude their issuance by the court’s deadline. Requesting that the court reconsider its order largely on the basis of arguments already rejected, the agency also asks the court to stay the order pending the Solicitor General’s determination whether to authorize an appeal and, if an appeal is authorized, while the appeal is pending.
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (S.D. Fla., filed July 12, 2013). According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension…
A New York resident has filed a putative class action against Boar’s Head Provisions Co., alleging that the company’s advertising and labeling representations—“47% lower sodium,” “42% lower sodium,” and “40% lower sodium”—for some of its deli meats, including turkey breast and ham, contain as much sodium as its regular deli meat products and a higher percentage of sodium than stated when compared to U.S. Department of Agriculture (USDA) reference products. Mackles v. Boar’s Head Provisions, Co., Inc., No. 13-4855 (S.D.N.Y., filed July 12, 2013). According to the complaint, the defendant’s representations are inaccurate by a factor of more than 10 percent. The plaintiff also alleges that when he asked the company about the lower-sodium claims on its product labels, he received a letter stating that they “were submitted to and approved by the USDA.” On further investigation, the plaintiff allegedly learned from USDA that companies must ensure labeling accuracy, and…
A Hawaii resident has filed a putative nationwide class action against Cargill, Inc., alleging that the company falsely advertises its Truvia® sweetener product as “natural” when it is actually made from ingredients that are “either synthetic or harshly chemically processed.” Howerton v. Cargill, Inc., No. 13-0336 (D. Haw., filed July 8, 2013). According to the complaint, the company markets the product with “natural imagery such as the leaves of the stevia plant,” yet “the stevia-derived ingredient, Reb A, is not the natural crude preparation of stevia, but rather is a highly chemically processed and purified form of the stevia leaf extract,” and Reb A “comprises only 1% of Truvia.” The plaintiff alleges that “the main ingredient, erythritol, which Cargill also purports to be a natural ingredient derived through natural processes, is not made like it is in nature, but rather is synthetically made. Cargill describes the process of obtaining stevia…
A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.” Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally…
A federal court in Australia has determined that processors advertising their chickens as “free to roam” on packaging and in advertisements and publications were liable to mislead the public as to the nature and characteristics of the product. Australian Competition & Consumer Comm’n v. Turi Foods Pty. Ltd., (No. 4) [2013] FCA 665 (Fed. Ct. of Austl., decided July 8, 2013). The court’s opinion details the efforts undertaken to determine stocking densities at various stages of a chicken’s development and includes the results of site visits by the court, support staff and the parties’ legal representatives. At certain times in their development, according to the court, thousands of chickens live in such close proximity in the sheds that “very little, if any, of the floor surface could be seen.” Thus, the court ruled that the “impugned statements . . . were apt to mislead and deceive and were false insofar…
A woman who claims that her 19-year-old son died as a result of consuming at least two 16-oz. cans of Monster Energy® drinks every day for three years has filed a survival and wrongful death action against the company. Morris v. Monster Beverage Corp., RG1368528 (Cal. Super. Ct., Alameda Cty., filed June 25, 2013). According to the complaint, the young man went into cardiac arrest on July 1, 2013, “[w]hile engaged in sexual activity with his girlfriend,” and efforts to revive him were unsuccessful. The autopsy report allegedly attributed his death to “cardiac arrhythmia due to cardiomyopathy.” The plaintiff focuses on the beverage’s caffeine and other ingredients that have purportedly been shown to produce adverse health effects, “including cardiac arrest.” The plaintiff alleges strict liability—design defect, failure to warn—negligent design, manufacture, sale, and failure to warn; concealment, suppression or omission of material facts; breach of implied warranties; punitive damages; and…
