A California resident has filed a putative class action against Smart Balance, Inc., alleging that the 100 mg of plant sterols in a single serving of the company’s spreadable butter products do not, as advertised, block the absorption of dietary cholesterol. Aguilar v. Smart Balance, Inc., No. 12-1862 (S.D. Cal., filed July 27, 2012). The named plaintiff seeks to represent either a multistate class of consumers or a California class. According to the complaint, studies show that, to reduce cholesterol, “a minimum of 0.8 grams, and preferably 2 grams, of plant sterols must be consumed daily.” Given the purportedly modest amount of sterols in the defendants’ products, the plaintiff claims that half a container would need to be consumed in one day “to realize even the minimum amount of cholesterol reduction benefit.” The plaintiff claims that she purchased the product relying on the cholesterol benefit representations and did not get…
Category Archives Litigation
A company that supplies specialty ingredients such as vitamins, chemicals and carotenoids to food producers has sued one of its suppliers, alleging that the company was forced to recall from customers more than 33,000 pounds of chromium amino acid chelate after learning that it contained a milk allergen. DSM Nutritional Prods., LLC v. Triarco Indus., Inc., No. C1928-12 (N.J. Super Ct., Morris Cty., filed July 26, 2012). The plaintiff also allegedly reported the matter to the Food and Drug Administration through the Reportable Food Registry. According to the complaint, in 2009, the defendant completed a questionnaire designed to inform the plaintiff “of the existence of any allergens or their derivatives contained in the product” sold to the plaintiff. “Not until July 27, 2010,” however, “did Defendant correctly label the product as containing a hydrolyzed milk protein, thus advising [the plaintiff] that Defendant’s product contained a milk allergen.” Alleging breach of contract…
Turtle Island Restoration Network and the Center for Biological Diversity have filed a complaint for declaratory and injunctive relief in a federal court in California against the Food and Drug Administration (FDA) to force the agency to act on their June 2011 petition seeking to reduce the allowable level of mercury in seafood. Turtle Island Restoration Network v. Hamburg, No. 12-03884 (N.D. Cal., filed July 25, 2012). The organizations claim that while FDA had 180 days, or until December 17, 2011, to respond to the petition, “[t]o date, FDA has neither granted nor denied the petition and has taken no action to reduce human exposure to mercury from commercial fish.” They request a court order declaring that FDA has violated the Administrative Procedure Act and requiring the agency to issue a decision on their petition within 30 days. The plaintiffs contend that FDA’s current action level for mercury in seafood…
The Center for Science in the Public Interest (CSPI) has filed a putative class action on behalf of two named California residents against General Mills alleging that its use of “All Natural,” “Natural,” and “100% Natural” product representations on its Nature Valley® food products is deceptive because they contain high-fructose corn syrup (HFCS), high-maltose corn syrup, and maltodextrin and rice maltodextrin. Janney v. General Mills, No. 12-3919 (N.D. Cal., filed July 26, 2012). According to the complaint, these ingredients are not “minimally processed,” yet the defendant purportedly “takes wrongful advantage of consumers’ strong preference for foods made entirely of natural ingredients” with words and images in its marketing and on product labels evocative of the outdoors and nature. While one of the named plaintiffs purchased “natural” food for a daughter with type 1 diabetes and the other sought an all-natural diet for a daughter with ADHD, they do not allege personal…
A federal court in New Jersey has rejected the claims of objectors questioning class notice and most of the settlement terms in a deal which resolves allegations that Ferrero USA, Inc., the company that makes the hazelnut spread Nutella®, misled consumers about the nutritive value of its product; while the court entered an order finally approving the settlement, it did reduce counsel fees by $1.25 million. In re Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J., decided July 31, 2012). Additional information about the objectors’ challenge appears in Issue 444 of this Update. Counsel had sought $3.75 million in fees, an amount the objectors claimed was unwarranted. According to the court, the reduced fees represent 25 percent of the value of the gross settlement fund, injunctive relief, costs and the incentive award to the class representatives.
A federal court in Idaho has denied all pending motions to dismiss in litigation brought by direct and indirect potato purchasers who allege that the defendants violated antitrust laws by agreeing to reduce the supply of potatoes in the United States to increase their price. In re Fresh & Process Potatoes Antitrust Litig., MDL No. 10-2186 (D. Idaho, filed July 27, 2012). The plaintiffs contend that the defendants formed cooperatives which agreed to limit crop acreage and paid farmers to destroy existing potatoes or refrain from growing additional potatoes. Assessing the allegations in the plaintiffs’ amended complaint, the court determined that they met the plausibility pleading standard required under the U.S. Supreme Court’s Twombly and Iqbal rulings.
While a federal court in California has dismissed warranty claims filed under federal law against an ice cream manufacturer sued for allegedly misleading consumers by labeling its products with the phrases “All Natural Flavors” and “All Natural Ice Cream,” most of the plaintiffs’ state law-based claims will proceed. Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910; Rutledge-Muhs v. Dreyer’s Grand Ice Cream, Inc., No. 11-3164 (N.D. Cal., order entered July 20, 2012). The plaintiffs allege that Dreyer’s and Edy’s ice cream products should not bear labels stating “All Natural Flavors” because they contain between one and five artificial and/or synthetic ingredients, and the company’s Haagen-Dazs ice cream products should not bear labels stating “All Natural Ice Cream” because they contain cocoa processed using a synthetic and/or artificial alkalizing agent. They allege violation of written warranty under the Magnuson-Moss Warranty Act; common law fraud; unlawful, unfair and fraudulent business practices and false…
The Tenth Circuit Court of Appeals has determined that a 2008 E. coli outbreak involving food prepared and served at a restaurant and a catered event constituted a single occurrence under the relevant insurance policies, thus reversing a magistrate judge’s conclusion that there were two occurrences and application of the policies’ aggregate limits rather than their “per occurrence” limits. Republic Underwriters Ins. Co. v. Moore, No. 11-5075 (10th Cir., decided July 20, 2012). The outbreak apparently infected 341 individuals, and one person died. When it appeared that the policy limits would be exceeded, the insurers brought this interpleader action, requesting that the court declare that the “per occurrence” limits applied, providing $3 million in coverage. Agreeing with the insurance companies, the Tenth Circuit stated, “[h]ere, all the injuries were proximately caused by the restaurant’s ongoing preparation of contaminated food. Hence, there was but one occurrence. It does not matter that…
Seeking to represent everyone who purchased a mahi mahi dish in Sharky’s Woodfired Mexican Grills throughout California, four Los Angeles County residents have filed suit alleging that the menu items do not contain mahi mahi fish as advertised. Chenier v. Sharky’s Franchise Group, LLC, No. 30-2012-00587784 (Cal. Super. Ct., filed July 31, 2012). The plaintiffs claim that they would not have purchased the products had they known the products were not made with mahi mahi. They allege violations of the California Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, negligent and intentional misrepresentation, and breach of express warranty, and seek disgorgement, restitution, public disclosure, injunctive relief, compensatory and punitive damages, attorney’s fees, and costs.
Daniele International, Inc. has requested that a federal court in Rhode Island enter a $33.1 million default judgment against a spice and seasonings company that allegedly supplied the Salmonella-tainted pepper which resulted in a recall of more than 1.2 million pounds of salami products in 2010. Daniele Int’l, Inc. v. Wholesome Spice & Seasonings, Inc., No. 10-1558 (D.R.I., motion filed July 30, 2012). The defendant has purportedly failed to respond to the complaint or to Daniele’s motion for entry of default. The plaintiff contends that its damages totaled $33,181,174.
