The Center for Food Safety and Center for Environmental Health have filed a lawsuit seeking to compel the U.S. Food and Drug Administration (FDA) to promulgate rules for a program to improve foodborne-illness detection as required under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Azar, No. 19-5168 (N.D. Cal., filed August 19, 2019). The organizations allege that FDA failed to create a laboratory accreditation program "whereby an increased number of accredited laboratories following model standards developed by the agency would be in place 'to rapidly detect and respond to foodborne illness outbreaks and other food-related hazards.'" "FDA’s failure to implement FSMA’s laboratory accreditation provisions by their statutory deadlines is an abdication of the agency’s fundamental responsibilities," the complaint asserts. "Moreover, the agency’s unlawful withholding and unreasonable delay is putting millions of lives at continued risk from contracting foodborne illnesses, contrary to Congress’s commands. This lawsuit therefore…
Category Archives Litigation
A plaintiff has filed a putative class action alleging Tillamook County Creamery Association misleadingly markets its products as sourced from cows in Tillamook County. Bohr v. Tillamook Cty. Creamery Ass'n, No. 19-36208 (Ore. Cir. Ct., Multnomah Cty., filed August 19, 2019). The complaint alleges that consumers "increasingly seek out and are willing to pay more for products that they perceive as being locally and ethically sourced—better for the environment, more humane." Tillamook allegedly sought to capitalize on this consumer preference by advertising its products as "made with four ingredients, patience, and old-fashioned farmer values in Tillamook, Oregon," despite producing its cheese and ice cream with ingredients obtained from "the largest and most industrialized dairy factory farm in the country," a "complex of cement-floored production facilities and barren dirt feedlots, where cows are continuously confined, milked by robotic carousels, and afflicted with painful udder infections." The complaint cites a "recent consumer…
A California federal court has dismissed a putative class action complaint alleging that Danone U.S. Inc.'s So Delicious Coconut Milk is misleadingly marketed as healthful. Andrade-Heymsfield v. Danone U.S. Inc., No. 19-0589 (S.D. Cal., entered August 14, 2019). Danone argued that the challenged statements were not health or nutrient content claims, and the court assessed each statement. "The 'Maximum Calcium Absorption' statement . . . is a permissible structure/function claim as permitted under the [U.S. Food and Drug Administration's (FDA's)] own guidance to its regulations. FDA guidance even lists 'calcium helps build strong bones' as a permitted structure/function claim, not a health claim," the court found. Similarly, "Nutrition in Every Sip" is a "permissible structure/function claim" and "is not made in connection with an explicit or implicit claim or statement about a nutrient as required by the regulation for implied nutrient content claims such as the cited example, 'healthy, contains…
A D.C. court has dismissed Bellion Spirits LLC's lawsuit aiming to compel the Alcohol and Tobacco Tax and Trade Bureau (TTB) to permit the company to market its products as containing "NTX, a proprietary blend of ingredients that they contend mitigates alcohol's damage to DNA." Bellion Spirits LLC v. United States, No. 17-2538 (D.D.C., entered August 1, 2019). TTB denied Bellion's application to make the health claims because it purportedly found inadequate substantiation after consulting with the U.S. Food and Drug Administration (FDA). Bellion filed suit, arguing that TTB could not work with FDA without express statutory authority. The court disagreed, finding that TTB has exclusive regulatory authority to make final decisions on alcohol, but nothing prohibits the agencies from consulting with each other. The court also dismissed Bellion's First Amendment argument, which maintained that its claims about NTX are true; the court noted that it must be deferential to…
A California federal court has denied Clif Bar & Co.'s motion to dismiss a putative class action alleging that its Clif bars contain high levels of sugar but are misleadingly marketed as healthful. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., entered August 20, 2019). The court disagreed with Clif's argument that the plaintiff's claims were preempted by federal laws on the display of nutritional information on food packaging, finding the provisions "of no moment here because plaintiffs are not challenging the nutrition information on the Clif bars' label." Further, the court declined to consider whether a "reasonable consumer would know that the challenged products contained added sugars" given the flavor names—including Chocolate Chip, Chocolate Brownie and Iced Oatmeal Cookie—because "the motion to dismiss stage is not the place to decide these questions of fact." "Clif is alleged to have marketed its bars using words and imagery designed…
A consumer has filed a putative class action alleging that Bacardi U.S.A. Inc.'s Bombay Sapphire is made with grains of paradise, amounting to adulteration under Florida law. Marrache v. Bacardi U.S.A. Inc., Filing No. 93932678 (Fla. Cir. Ct., 11th Jud. Cir., filed August 9, 2019). The complaint cites a Florida statute deeming the inclusion of grains of paradise—along with several other substances described as "poisonous or injurious to health," including opium, capsicum, laurel water and cochineal—in any liquor intended for consumption to be adulterated, amounting to a felony of the third degree. The plaintiff notes that the Bombay Sapphire bottle features an etching of 10 botanicals, including grains of paradise—which "has been used in other parts of the world for medicinal purposes including, without limitation, to treat impotence and to stimulate miscarriages when a pregnancy was unwanted."
A Massachusetts federal court has dismissed a lawsuit alleging that Post Consumer Brands misleads consumers by implying that Honey Bunches of Oats is primarily sweetened with honey rather than sugar, brown sugar and corn syrup. Lima v. Post Consumer Brands LLC, No. 18-12100 (D. Mass., entered August 13, 2019). Post argued that "honey" describes "one of the cereal's primary recognizable flavors" in addition to being a sweetener. "Plaintiffs seemingly understand that honey is both a sweetener and a flavoring agent," the court found, "yet they do not explain why they concluded that the word honey and the associated imagery necessarily meant that honey was the primary sweetener, rather than referring to the flavor of the cereal." Further, the court found that the packaging "makes no objective representation about the amount of honey, leaving the cereal's accurate list of ingredients as the only unambiguous representation of the amount of honey relative…
A New York federal court has granted Crystal Farms Refrigerated Distribution Co.'s motion to dismiss a putative class action alleging that the packaging of Diner's Choice mashed potatoes misleads consumers by featuring "Made with Real Butter" on the front despite containing both butter and margarine. Reyes v. Crystal Farms Refrigerated Distrib. Co., No. 18-2250 (E.D.N.Y., entered July 26, 2019). The court dismissed the allegations relying on the "butter" representation because the statement "is not misleading. Defendant's mashed potatoes contain butter. [] To the extent that including a label on a mashed-potatoes package indicating that the product is 'made with real butter' may create confusion as to whether the mashed potatoes also contain margarine, such confusion is sufficiently dispelled by the ingredients label on the back of the package, which states twice—and once in bold font set apart from the rest of the items listed in the ingredients label—that the product…
An Illinois federal court has dismissed part of a putative class action alleging that Champion Petfoods USA Inc. sold foods for animals that contained elevated levels of several heavy metals—including arsenic, cadmium, mercury and lead—as well as bisphenol A (BPA), pentobarbital, "non-regional and non-fresh ingredients, or unnatural or other ingredients that do not conform to the dog foods' packaging or advertising." Zarinebaf v. Champion Petfoods USA Inc., No. 18-6951 (N.D. Ill., E. Div., entered July 30, 2019). The court found that the plaintiffs were not alleging the dog foods to contain unsafe levels of the materials at issue; rather, the plaintiffs' claims were plausible because they alleged that the marketing led them to believe the products to be "healthy, natural and high-quality" but that a reasonable consumer would not have purchased the products knowing that they contained heavy metals and BPA. The court dismissed claims relying on the presence of…
H.J. Heinz Co. has filed a trademark infringement suit alleging Real Good Food Co. created and sold frozen appetizers described as "Poppers," which Heinz argues it owns the rights to for "frozen appetizers consisting primarily of vegetables, pork and/or cheese, not including shrimp." H.J. Heinz Co. Brands LLC v. Real Good Food Co., No. 19-0915 (W.D. Penn., filed July 26, 2019). Heinz further argues that Real Good Food Co. had actual knowledge of Heinz's rights to the Poppers mark because Real Good Food Co.'s website compares its products to Heinz's TGI Friday's-branded appetizers. Heinz alleges federal trademark counterfeiting, infringement, dilution and unfair competition and seeks injunctive relief, damages and destruction of infringing materials.
