A Florida federal court has dismissed a lawsuit alleging that Bacardi U.S.A.'s Bombay Sapphire contains a botanical classified as an adulterant in the state. Marrache v. Bacardi U.S.A., No. 19-23856 (S.D. Fla., entered January 28, 2020). "Numerous class actions have greatly benefited society, such as Brown v. Board of Education, In re Exxon Valdez, and In re Agent Orange Product Liability Litigation," the court's decision began. "This is not one of those class actions." The plaintiff "does not allege that the bottle of gin he bought containing grains of paradise caused him any health issues or other harm," the court noted. "He instead alleges that the product was 'worthless' because it was adulterated with grains of paradise." The court found that the 1868 Florida law prohibiting grains of paradise in alcohol was preempted by federal regulations finding that the botanical is generally regarded as safe. The plaintiff argued that the…
Category Archives Litigation
An Arizona federal court has granted the U.S. Federal Trade Commission's (FTC's) request to temporarily shut down "Success By Health," an alleged pyramid scheme premised on the sale of instant coffee. The coffee, "MycoCafe," is touted as containing health benefits from mushrooms. "However, the FTC alleges that selling the product to coffee drinkers took a back seat to recruiting more affiliates," according to an agency press release. "The complaint alleges that when affiliates did try to sell the product to other consumers, they found themselves in competition with the company itself. Success By Health sells its products directly to the public for the same 'wholesale' price paid by affiliates, severely limiting affiliates’ ability to follow the defendants’ instructions to apply a 50 percent 'markup' before selling to the public."
Four consumers have filed a putative class action alleging that BA Sports Nutrition's BodyArmor SuperDrink sports drinks are "unlawfully fortified junk food." Silver v. BA Sports Nutrition LLC, No. 20-0633 (N.D. Cal., filed January 28, 2020). "BodyArmor does not provide 'superior' or 'better' hydration to Plaintiffs and other consumers than other beverages, nor are the Plaintiffs or the general public hydration deficient and/or in need of its characteristics to replenish them from dehydration," the complaint asserts. The plaintiffs argue that BodyArmor is a sugar-sweetened beverage "that scientifically links to serious medical conditions, including obesity, type 2 diabetes, and cardiovascular disease, when regularly consumed." They allege that they "would not have purchased BodyArmor, purchased as much of it, or paid as much for it, had they understood that consumption does not provide them with a drink comprised of natural ingredients and/or that was more, natural, better for them than other drinks."…
A California federal court has refused to approve a $6.5 million settlement between Tri-Union Seafoods and commercial food preparers. In re Packaged Seafood Prods. Antitrust Litig., No. 15-2670 (S.D. Cal., entered January 17, 2020). The court found that the proposed $6.5 million, half of which would go to attorney's fees and $2 million to costs and expenses, "would provide at most $1.5 million" to the class. The gross settlement amount "is approximately one-third of the damages," the court noted, and "a rough calculation suggests that [the class] will collectively receive approximately 6.85% of the damages they attribute to [the defendant]."
Labeling class action filings focused on purportedly misleading ingredient labels tend to come in waves, and 2019 saw a surfeit of lawsuits targeting vanilla, white chocolate and malic acid. Several plaintiffs alleged that they were misled by products listed as vanilla-flavored because, they argued, they believed they were buying products flavored with vanilla beans rather than artificial vanilla. The allegations reached yogurt, cream soda, ice cream, coconut milk and almondmilk, among other products. D-l malic acid, a synthetic flavoring, was frequently alleged to be masquerading on ingredient lists as malic acid, a naturally occurring compound. Many plaintiffs argued that they purchased products—including Brookside chocolates, Laffy Taffy, orange juice and SweeTarts—believing them to be "natural" and free of synthetic ingredients. Plaintiffs continue to file putative class actions alleging that they were misled by labels marketing products as containing "real cocoa" rather than "cocoa processed with alkali," and Oreos and Cocoa Pebbles…
Several 2019 putative class actions targeted food products that purportedly misled consumers because they were marketed as "healthy" despite containing ingredients with debated health benefits. Coconut and coconut-derived products were a popular target for plaintiffs, who asserted that they were misled about the benefits associated with cooking with coconut oil or drinking coconut milk because coconut products frequently carry high levels of saturated fat. The same plaintiff sued Hain Celestial Group Inc. and Danone U.S. Inc., though the court found that Danone's marketing touting So Delicious Coconut Milk's "Maximum Calcium Absorption" benefit was "a permissible structure/function claim." "Healthy" confusion also extended to TGI Friday's Inc. potato skins—the "labeling deceives consumers into believing that they are receiving a healthier snack" because the potato skin is high in several nutrients, the plaintiffs allege—and sprouted grains, which Food for Life Baking Co. Inc. apparently marketed as nutritionally superior to comparable cereal products. Kellogg Sales…
As consumers prioritize animal welfare more highly when purchasing meat, more companies are claiming to hold their production facilities to high standards—and more plaintiffs are disagreeing. Advocacy groups have targeted multiple companies for their allegedly misleading marketing touting their humane housing or slaughtering practices. For example, the Organic Consumers Association and Food & Water Watch filed a lawsuit against Pilgrim's Pride Corp. challenging the conditions of its chickens in its production plants. Facing a similar lawsuit, Hormel Foods Corp. won summary judgment when the D.C. Superior Court found the Animal Legal Defense Fund's claims to be preempted by the U.S. Department of Agriculture. In addition, the European Court of Justice considered what slaughter methods could warrant an "organic" label, determining that cows must be stunned before they are slaughtered. The National Advertising Division also recommended changes to a marketing campaign following a complaint that Clemens Food Group used misleading language…
The Seventh Circuit has declined to revive a putative class action alleging that Fannie May Confections Brands Inc. misleads consumers as to the amount of chocolates contained in its boxes. Benson v. Fannie May Confections Brands Inc., No. 19-1032 (7th Cir., entered December 9, 2019). The court found that the plaintiffs suffered no "actual damage" as a result of Fannie May's allegedly misleading packaging. The plaintiffs "never said that the chocolates they received were worth less than the $9.99 they paid for them, or that they could have obtained a better price elsewhere," the court held. "That is fatal to their effort to show pecuniary loss. Moreover, their request for damages based on the percentage of nonfunctional slack-fill is quite vague. They do not explain how a percentage refund of the purchase price based on the percentage of nonfunctional slack-fill corresponds to their alleged harm. They thus failed to raise…
An Arkansas federal court has granted Turtle Island Foods SPC, which does business as Tofurky Co., a preliminary injunction preventing the enforcement against it of an Arkansas law prohibiting the use of meat-related terms to describe plant-based products on food packaging. Turtle Island Foods SPC v. Soman, No. 19-0514 (E.D. Ark., C. Div., entered December 11, 2019). The court found that Tofurky "likely faces ruinous civil liability, enormous operational costs, or a cessation of in-state operations" if the statute is enforced against it. The court granted the preliminary injunction despite Arkansas' indication that it "does not intend to begin enforcement" until the constitutional challenge is resolved because "there is nothing in the record binding the State to that position" and "the State has made no assurances that it will not levy retroactive penalties for Tofurky's alleged violations of Act 501 between the law's passage and this litigation's conclusion."
An Illinois federal court has dismissed a lawsuit alleging Wendy's International discriminates against disabled customers who cannot independently access 24-hour Wendy's locations during night hours when the stores only accept drive-through orders. Davis v. Wendy's Int'l LLC, No. 19-4003 (N.D. Ill., E. Div., entered December 12, 2019). The court held that the Wendy's policy applied to all pedestrians regardless of their disabled status. "[A]s with any other non-drivers, [the plaintiff] could access the drive-through if she were a passenger in a car sharing service, a taxi, or a friend's car," the court noted. "Therefore, the fact that [the plaintiff] cannot drive because of her visual impairment does not establish that Wendy's drive-through policies are the but-for cause for her inability to obtain food. [] Instead, it is her status as a pedestrian that is the but-for cause of her injury." The court dismissed the plaintiff's claim with prejudice.
