According to the quarterly Securities and Exchange filing of Monster Beverage Corp., an unnamed state attorney general (AG) subpoenaed company records in July 2012 regarding its energy beverages. The subpoena apparently concerns “the Company’s advertising, marketing, promotion, ingredients, usage and sale of its Monster Energy® brand of energy drinks.” The company further notes, “As the investigation is in an early stage, it is unknown what, if any, action the state attorney general may take against the Company, the relief which may be sought in the event of any such proceeding or whether such proceeding could have a material adverse effect on the Company’s business, financial condition or results of operations.” News sources indicate that Monster had a 35 percent share of the energy drink market in 2011, and at least one financial analyst understands that others in the industry may also be targeted in the probe. While the caffeine in…
Category Archives Litigation
A nonprofit family farming organization, the Center for Food Safety and several seed companies have sued the Oregon Department of Agriculture seeking court review and a stay of a temporary rule that would open 1.7 million acres to genetically modified (GM) canola plants. Friends of Family Farmers v. Or. Dep’t of Agric., No. ___ (Or. Ct. App., filed August 15, 2012). The plaintiffs claim that opening formerly protected acreage to GM crops in the Willamette Valley without imposing appropriate buffers would harm them through cross pollination, seed crop contamination, increased pests and disease, and escaped canola weeds. They claim that the rule was adopted under the agency’s temporary rulemaking authority which does not include opportunity for public notice, review and comment. “The critical prerequisite for adopting a temporary rule is the requirement to demonstrate that an agency’s failure to act promptly will result in ‘serious prejudice’ to the public interest or the…
Dole Food Co. has filed a motion to dismiss or strike claims in a putative class action alleging that its food product labels mislead consumers. Brazil v. Dole Food Co., Inc., No. 12-1831 (N.D. Cal., motion filed August 13, 2012). Identifying the plaintiff as a “repeat class representative” who recently received an incentive award in another lawsuit, Dole argues that his claims are preempted under federal law, he lacks standing because he has not been injured, the claims are not plausible, and he has failed to state a claim under California law. The company also notes that the case is “one of 24 (and counting) nearly identical ‘misbranding’ class action cases filed during a 15-week blitz by nine law firms from six different states,” thus making it an “assembly-line” complaint that follows “a common recipe.” In summary, Dole contends, “By this lawsuit, Plaintiff seeks colossal damages, punitive damages, and a nationwide injunction…
A Los Angeles County resident has filed a putative class action against the Austrian and British makers of “Oxygizer” water, claiming that the companies “falsely represent that through a patented process they are able to hyperoxygenate water and that consumption of Oxygizer leads to a number of purported beneficial health effects.” Ghazarian v. Oxy Beverages Handelsgesellschaft mbH, No. BC489773 (Cal. Super. Ct., filed August 7, 2012). Noting that people cannot absorb oxygen through their digestive systems, the plaintiff alleges that the defendants mislead consumers by falsely claiming their beverage can aid athletic performance, transport oxygen to every body cell, strengthen the immune system, and help office workers in large cities make up oxygen deprivation. The companies purportedly claim that scientific tests support their product representations and that their water is patented; the plaintiff alleges that these claims are also false and misleading. According to the plaintiff, the Federal Trade Commission has…
The day after district attorneys for three California counties filed a lawsuit against tuna producers alleging that they make quantity misrepresentations “by failing to meet the standard of identity for canned tuna products seasoned or flavored with broth, as defined in the Code of Federal Regulations,” it was announced that a $3.3 million settlement had been reached. California v. Bumble Bee Foods, LLC, No. 12-11729 (Cal. Super. Ct., filed August 2, 2012). According to the San Diego County district attorney, a California Department of Food and Agriculture (CDFA) investigation discovered that the companies “failed to meet the required amount of tuna in cans packed with vegetable broth and added flavors.” Under the terms of the agreement and without admitting liability, each company will provide $300,000 in canned tuna to California food banks, and costs and penalties will be divided among the counties with each receiving $969,500. CDFA will be paid investigative…
A California Superior Court has reportedly dismissed a lawsuit filed by nearly 3,000 Philippine banana plantation workers who claimed that exposure to the pesticide 1,2-Dibromo-3-chloropropane (DBCP) more than 30 years ago caused physical and mental injury including sterility, testicular atrophy, miscarriages, and cancer. Macasa v. Dole Food Co., No. BC467134 (Cal Super. Ct., decided August 8, 2012). More details about the litigation appear in Issue 405 of this Update. According to a company spokesperson, the claims were fraudulent and should not have been brought because no reliable scientific evidence links DBCP agricultural exposures to the injuries alleged. The company reported that an identical lawsuit filed 13 years ago in the Philippines was also dismissed. The U.S. Environmental Protection Agency has apparently prohibited the pesticide’s use in the United States, classifying it as a probable human carcinogen. See Ventura County Star, August 9, 2012.
A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
A federal magistrate judge in New York has determined that the Food and Drug Administration (FDA) must begin proceedings to withdraw its approval of the use of certain antibiotics in livestock for non-therapeutic purposes on the agency’s timeline, thus denying FDA’s request for a stay while the matter is pending on appeal before the Second Circuit. NRDC v. FDA, No. 11-3562 (S.D.N.Y., decided August 8, 2012). In June, the court determined that FDA arbitrarily denied petitions filed by advocacy organizations in 1999 and 2005 requesting the initiation of these proceedings. More information about the case appears in Issue 442 of this Update. The magistrate first ruled on the Natural Resource Defense Council’s (NRDC’s) motion to strike a document from the record; it was an Animal Health Institute statement “expressing general support for the FDA’s plans to reduce the non-therapeutic use of medically-important antibiotics in animal feed through a voluntary guidance…
The Ninth Circuit Court of Appeals has determined that the “filed rate doctrine” does not bar the state law-based claims of dairy farmers alleging that milk marketing cooperatives (handlers) provided erroneous reports to the federal government which relied on them to set a minimum price structure for raw milk sales; as a result, the farmers purportedly lost millions of dollars. Carlin v. DairyAmerica, Inc., No. 10-16448 (9th Cir., decided August 7, 2012). Each of the four named plaintiffs in this consolidated proceeding filed claims on behalf of a nationwide class alleging (i) negligent misrepresentation, negligent interference with prospective economic advantage and unjust enrichment, all under California common law; and (ii) violation of California’s Unfair Business Practices Law. The filed rate doctrine “‘is a judicial creation that arises from decisions interpreting federal statutes that give federal agencies exclusive jurisdiction to set rates for specified utilities, originally through rate-setting procedures involving the…
The U.S. Patent and Trademark Office (USPTO) has issued a final rule that incorporates certain changes that took effect in January 2012 under the Nice Agreement Concerning the Classification of Goods and Services for the Purpose of the Registration of Marks, to which the United States is a signatory. Among other matters, (i) Class 5 is changed from “dietetic substances adapted for medical use” to “dietary food and substances adapted for medical use”; and (ii) Class 32 is change from “non-alcoholic drinks; fruit drinks” to “non-alcoholic beverages; fruit beverages.” USPTO’s classification of goods and services under the Trademark Act is codified at 37 CFR part 6. See Federal Register, August 9, 2012.
