A federal court in New Jersey has found that most of the named plaintiffs in putative class actions consolidated in a multidistrict litigation (MDL) proceeding lack standing to pursue claims that General Mills, Inc. violated consumer fraud laws by claiming that its Cheerios cereal products reduce cholesterol, the risk of heart disease and certain forms of cancer. In re Cheerios Mktg. & Sales Practices Litig., No. 09-2413 (D.N.J., decided September 10, 2012) (unpublished). Under a choice-of-laws analysis, the court found that California, New Jersey and New York law applied to the claims and thus dismissed four counts alleging violations of Minnesota law. The court also found that most of the named plaintiffs consumed the cereal for reasons other than health benefits, did not know what the cereal cost or had not read the product labels. Accordingly, the court granted the company’s motion for summary judgment as to five of the named plaintiffs.…
Category Archives Litigation
The Ninth Circuit Court of Appeals has withdrawn its previous opinion reversing an order that approved the settlement of class claims against Kellogg Co., although it has reached the same conclusion in its new opinion. Dennis v. Kellogg Co., Nos. 11-55674, -55706 (9th Cir., decided September 4, 2012). Information about the withdrawn opinion is included in Issue 447 of this Update. The plaintiffs claimed that Kellogg lacked supporting scientific evidence for marketing and promotional statements that some of its cereal products could improve children’s cognitive functions. Apparently, the court had failed to consider the plaintiffs’ preliminary argument that it could not address the validity of the cy pres distribution of funds that remained in the settlement fund. They contended that the issue “will not be ripe until it is determined that available cash remains in that fund after the claims process has concluded.” As the court observed in a footnote…
According to a news source, a Brazilian court has determined that Nestlé’s strawberry-flavored Bono Cookies® contain genetically modified (GM) soybeans at levels in excess of a 1 percent limit and that the company must thus place a yellow triangle with a “T” in the middle along with the word “transgenic” on its product labels. Failure to do so will apparently result in a fine of nearly $2,500 USD per product found in the market to contravene the order. The European Union and Japan also reportedly require GM foods to be labeled, and California voters will vote on a GM labeling referendum this fall. See Food World News, August 27, 2012.
The manufacturer that sells the Bosch®, Thermador® and Gaggenau® brands of home appliances has sued the Julia Child Foundation for Gastronomy and the Culinary Arts seeking a declaration that it has not infringed the defendant’s trademarks and copyrights or the publicity rights related to the late Julia Child. BSH Home Appliances Corp. v. The Julia Child Found. for Gastronomy & the Culinary Arts, No. 12-11590 (D. Mass, filed August 24, 2012). According to the complaint, Julia Child used the plaintiff’s Thermador® oven for many years both on the set of The French Chef TV program and in her personal kitchen, which, after she died, was donated to and appears in the Smithsonian Institution. The oven maker claims that it has used images of Julia Child “and references to the well-known historical fact of her use of Thermador products in various media, including on its website and on its social media web…
The Center for Food Safety and Center for Environmental Health have filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) alleging that the agency has unlawfully delayed adopting implementing regulations under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., filed August 29, 2012). According to the complaint, FDA has missed seven statutory deadlines thus “failing to implement FSMA’s major food safety regulations.” Characterizing the failure as “an abdication of the agency’s fundamental responsibilities,” the plaintiffs claim that this delay “is putting millions of lives at risk from contracting foodborne illnesses.” They also sued the Office of Management and Budget, claiming that it has also missed statutory deadlines in failing to approve the implementing regulations that FDA has submitted for its review. The complaint recites Centers for Disease Control and Prevention estimates that one in six Americans…
A federal court in California has granted in part the motion to dismiss filed by the defendant in a putative class action alleging that it falsely misrepresents its smoothie kits as “All Natural” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides.” Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., order entered August 25, 2012). Additional information about the case appears in Issue 432 of this Update. The court agreed with Jamba Juice that the plaintiff had failed to state a warranty claim under the Magnuson-Moss Warranty Act, because “the statement ‘All Natural’ is a general product description rather than a promise that a product is defect free.” Still, the court dismissed the plaintiff’s claim for breach of express warranty under the Act with leave to amend “to the extent some other basis may exist for this…
The Seventh Circuit Court of Appeals has determined that a Steak 'n Shake franchisee in Illinois was entitled to a preliminary injunction to stop the implementation of a new Steak 'n Shake policy for menu pricing and promotions. Stuller, Inc. v. Steak N Shake Enters., Inc., No. 11-2656 (7th Cir., decided August 24, 2012). The franchisee, in operation for more than 70 years, owns five restaurants and is the oldest Steak 'n Shake franchisee in the country. While Steak 'n Shake controls many aspects of restaurant management, some aspects are left to individual franchisees. Plaintiff Stuller, Inc. has had the ability to set menu prices throughout its history, but in June 2010, Steak 'n Shake demanded that all franchisees follow its menu pricing and promotions. Stuller brought a declaratory judgment action against Steak 'n Shake after the franchisor threatened to terminate Stuller’s franchises for refusing to implement the new policy. The…
A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.” The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on…
According to news sources, the Dusseldorf Regional Court has refused a request for preliminary injunction filed by Nestlé seeking to stop competitors from selling capsules that fit its Nespresso™ coffee makers in Germany. The court reportedly ruled that Nestlé’s patent for the machine does not extend to capsules sold at a lower price by two other Swiss firms. Defendants Ethical Coffee and Betron market their products in a number of European countries as “usable for Nespresso machines.” The rival capsules are about a third less expensive than the Nestlé capsules. The company, which has aggressively defended its Nespresso™ business—worth $3.6 billion worldwide—can apparently either ask the court for a full civil-trial process or appeal the ruling. See The New York Times, Associated Press and Bloomberg, August 16, 2012.
A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
