Contending that the genetically modified (GM) corn in General Mills’ Kix Crispy Corn Puffs® and Honey Kix Crispy Corn Puffs® cereals renders their “All Natural Corn” representations false and misleading, a California resident has filed a putative class action against the company in state court. Lewis v. General Mills, Inc., No. BC472451 (Cal. Super. Ct., Los Angeles Cty., filed October 28, 2011). Citing the Cornucopia Institute’s “Cereal Crimes” report, and testing purportedly showing that Kix contains GM corn, the plaintiff seeks to certify a nationwide class of consumers who allegedly relied on the “All Natural” representations, as well as other company indicia of wholesomeness, to purchase products at a premium price and were denied the benefit of their bargain. According to the plaintiff, companies that produce GM crops note that that their genetic makeup has been “altered to exhibit traits that are not naturally theirs,” and the World Health Organization…
Category Archives Litigation
The Center for Food Safety (CFS) and other public interest organizations have filed a lawsuit against the U.S. Fish and Wildlife Service (FWS), seeking a declaration that the agency’s decision to allow the cultivation of genetically engineered (GE) corn and soybean crops on wildlife refuge lands in the Midwest violated federal environmental laws. Ctr. for Food Safety v. U.S. Fish & Wildlife Serv., No. 11-01934 (D.D.C., filed November 2, 2011). The lawsuit involves 66 refuges and wetland management districts encompassing more than 1.2 million acres across eight states. According to the center, the action “marks the latest in a series of successful lawsuits by public interest organizations to stop the planting of GE crops on national wildlife refuges.” The complaint alleges that FWS has entered into cooperative farming agreements with private parties allowing them to farm national wildlife refuge land with GE crops without preparing an environmental impact statement under the…
The Canadian Wheat Board, which apparently serves as the marketing organization for western Canadian wheat, durum wheat and barley farmers, has filed a lawsuit against the Minister of Agriculture and Agri-Food, in his capacity as Minister Responsible for the Canadian Wheat Board, alleging that he failed to consult with the board as required by law before “causing to be introduced in Parliament on October 18, 2011,” a bill that would create an open market and essentially eliminate the board’s “exclusive statutory marketing authority in respect of wheat and barley.” The board claims to have “a legal mandate to extract the highest overall returns for farmers by effectively leveraging the powers of the single desk.” According to a news source, the board narrowly approved the legal action; directors elected by farmers, for the most part, supported it, while those appointed by the government voted against it. Opposition farmer Henry Vos, calling…
The European General Court (ECG) has determined that the European Commission (EC) erred in removing the antibacterial chemical 2,4,4’-tricihloro2’-hydroxydiphenyl ether (triclosan) from the list of additives that may be used to make plastic materials and other articles that come into contact with foods. Microban Int’l Ltd. v. EC, No. T-262 (ECG, decided October 25, 2011). The court first determined that the EC’s action constituted a regulatory act of direct concern to the applicants, companies that make the additive. The court then ruled both that the EC based its decision on the wrong law and failed to follow the correct procedures in removing triclosan from the list. The court noted that the chemical was previously included on the provisional list of additives which can continue to be used subject to national law on the basis of a European Food Safety Authority determination in 2004 that “although triclosan was a substance for which an…
A California resident has filed a putative nationwide class action against Austrian and British companies that sell Oxygizer®, a “designer water” product promoted as an athletic performance aid, alleging that increased oxygen content cannot deliver the benefits claimed. Ghazarian v. Oxy Beverages Handelsgelsellschaft mbH, No. 11-8860 (C.D. Cal., filed October 26, 2011). The companies purportedly promote the product with claims that (i) it aids rapid muscle recovery by increasing the level of oxygen in the body, (ii) the glass bottle eliminates or reduces oxygen loss, (iii) it is the only water with a proven positive effect on the body, (iv) the product is patented, (v) it transports oxygen in body cells to regenerate them, (vi) the water strengthens the immune system and improves cardiovascular and respiratory function, and (vii) it helps office workers who are deprived of oxygen in large cities. According to the plaintiff, each of these claims is…
California residents have filed a putative class action in a federal court against grocery chain Trader Joe’s Co., alleging that a number of its “All Natural” products contain synthetic or artificial ingredients and thus are mislabeled and falsely advertised. Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., filed October 24, 2011). According to the complaint, “The labeling of products as ‘All Natural’ carries implicit health benefits important to consumers—benefits that consumers are often willing to pay a premium for over comparable products that are not ‘All Natural.’ Trader Joe’s has cultivated and reinforced a corporate image that has catered to this ‘All Natural’ theme and has boldly emblazed this claim on each and every one of its foods identified above, despite the fact Trader Joe’s uses synthetic ingredients in the products identified above.” The listed products include cookies, biscuits, cheese, fruit jellies, and apple juice sold under the Trader…
Seeking to represent a nationwide class of consumers, a New York resident has filed a lawsuit in a New Jersey federal court, alleging that Smart Balance, Inc. falsely labels its fat-free milks enhanced with omega-3 as “Fat Free” when they actually contain 1 gram of fat per serving. Stewart v. Smart Balance, Inc., No. 11-06174 (D.N.J., filed October 19, 2011). Acknowledging that the nutrition facts label indicates that the products contain 1 gram of fat, the plaintiff nonetheless contends that the front-of-package representations are “intentionally confusing and misleading.” She alleges that she paid more for the company’s products than she would have otherwise paid for alternative milk options because she relied on the “Fat Free” labels, which she contends violate federal labeling rules. Alleging violation of the New Jersey Consumer Fraud Act, unjust enrichment, breach of warranty, and injunctive relief, the plaintiff seeks class certification; compensatory, treble and punitive damages; disgorgement;…
A federal court in New Jersey has refused the request to intervene filed by plaintiffs to a California consumer-fraud lawsuit against the company that makes the hazelnut spread Nutella®. Glover v. Ferrero USA, Inc., No. 11-1086 (D.N.J., decided October 20, 2011) (unpublished). The New Jersey action, like its California counterpart, was filed as a putative nationwide class action; the laws under which the cases were filed and the class periods differ. According to the New Jersey court, the intervenors had no interest in litigating the New Jersey case; rather, their stated intent was to dismiss the case or transfer it to California. The court also noted that while the California Nutella® litigation was filed first, “the actions are not truly duplicative.” The Judicial Panel on Multidistrict Litigation has refused to consolidate the California and New Jersey actions for pretrial proceedings.
A federal court in California has issued orders allowing certain claims to proceed in Lanham Act litigation brought by sugar producers against trade associations and companies that make high-fructose corn syrup (HFCS). W. Sugar Coop. v. Archer-Daniels-Midland Co., No. 11-3473 (C.D. Cal., orders entered October 21, 2011). The plaintiffs allege that an advertising campaign the defendants launched in 2008 to tell the public that “HFCS is corn sugar,” “HFCS is natural,” and “sugar is sugar” contains false representations about HFCS “that constitute false advertising under the Lanham Act and a violation of the California[] Unfair Business Practices Act.” The defendants filed a motion to dismiss contending that the plaintiffs had failed to state a claim on which relief can be granted. While the court agreed that the plaintiffs had failed to state a claim against individual trade association members, it found the pleadings sufficient to state a claim for false advertising…
The First Circuit Court of Appeals has upheld a district court ruling that Welch Foods, Inc. was not entitled to defense costs and indemnity under an insurance contract which provided an exclusion for claims involving unfair competition and deceptive trade practices. Welch Foods, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 10-2261 (1st Cir., decided October 24, 2011). Welch was named as a defendant in two lawsuits alleging that the company misrepresented its 100% Juice White Grape Pomegranate Flavored Three Juice Blend® by featuring pomegranates on the product’s label because the juice is primarily apple and grape juice. The company sought defense costs and indemnity from three of its insurers, and two of them settled the claims. As to the third company, the court determined that while the exclusion terms “unfair competition” and “deceptive trade practice” were not defined in the insurance contract at issue, their plain…
