A putative class action has been filed in a federal court in California against Beam Global Spirits & Wine, Inc., alleging that the company’s Skinnygirl™ Margarita beverage, purportedly created by a natural foods chef, contains sodium benzoate and other preservatives and should not be advertised and sold as a “natural” product. Bonar v. Beam Global Spirits & Wine, Inc., No. ___ (S.D. Cal., filed September 6, 2011). Alleging purely economic damages, the plaintiff seeks to certify a nationwide class of purchasers and claims that the company has violated California’s Consumers Legal Remedies Act and Business & Professions Code Section 17200 et seq., and breached express warranties. She requests compensatory and punitive damages, restitution, disgorgement, corrective advertising, injunctive relief, attorney’s fees, and costs.
Category Archives Litigation
Brandeis University has filed suit against a number of cookie and biscuit manufacturers, including Keebler Co., Famous Amos Chocolate Chip and The Pillsbury Co., alleging that they have infringed patents that adjust the LDL/HDL ratio in human serum by balancing saturated and polyunsaturated dietary fatty acids. Brandeis Univ. v. East Side Ovens, Inc., No. 11-619 (W.D. Wis., filed September 7, 2011). According to the complaint, the patents (‘497 and ‘192) were issued in 1998 and 2003 and “are directed to fats and fat blends that decrease low-density lipoprotein cholesterol (LDL) and increase high-density lipoprotein cholesterol (HDL) in human serum,” resulting “in significant health benefits.” The university alleges that the defendants’ cookie, cookie dough, and reduced fat biscuit and crescent roll products infringe its patents. The plaintiff seeks injunctive relief, damages, costs, and a “declaration that this is an exceptional case and an award of attorneys’ fees.
After Kona coffee growers called for Safeway, Inc. to comply with Hawaiian regulations on labeling Kona coffee, a California resident filed a putative class action against the company in federal court, alleging that its Safeway Select™ “Kona Blend” coffee contains “very little Kona coffee bean content.” Thurston v. Safeway, Inc., No. 11-04285 (N.D. Cal., filed August 30, 2011). Seeking to certify nationwide or statewide classes, the plaintiff calls the company’s labeling false and misleading and contends that she “did not receive the ‘Kona Blend’ she bargained for when she purchased Safeway’s Kona Blend Coffee, and has lost money as a result in the form of paying a premium for Kona Blend coffee” instead of paying less for a non-Kona or low-Kona coffee alternative. The plaintiff alleges common law fraud, violations of various consumer fraud statutes and restitution based on quasi contract or unjust enrichment. She requests restitution, compensatory and punitive…
A California woman who alleges that certain J.M. Smucker’s products contain partially hydrogenated vegetable oil (PHVO), or trans fat, while the company falsely promotes them as healthy for consumers, has requested an October 10, 2011, hearing on her motion to certify a nationwide class. Henderson v. The J.M. Smucker Co., No. 10-04525 (C.D. Cal., first amended complaint filed August 12, 2010). According to the complaint, the plaintiff purchased the company’s Crisco Original Shortening®, Crisco Butter Flavor Shortening® and Smucker’s Uncrustables Sandwiches® relying on representations that the shortening had “50% Less Saturated Fat Than Butter” and was “All Vegetable,” and that the Uncrustables were “Wholesome,” made from “whole wheat” and “homemade goodness.” Characterizing PHVO as an “unwholesome manufactured additive,” most of the complaint focuses on the purported health effects of consuming trans fat. The plaintiff alleges violations of various consumer fraud laws and seeks injunctive relief, corrective advertising, disgorgement, the destruction of “all misleading…
A federal court in Florida has dismissed with prejudice most of the claims asserted in a putative class action alleging that “percent fat free” labels on the packages of deli meats are misleading and deceptive. Kuenzig v. Kraft Foods, Inc., No. 11-838 (Tampa Div., decided September 12, 2011). Additional information about the case appears in Issue 391 of this Update. The court found all but one of the plaintiff’s claims preempted by federal food-labeling law and also found that all but one of his claims failed to state a claim because they were frivolous or disingenuous. As to defendant Hormel Foods Corp., the plaintiff had alleged that while the company’s labels do not indicate the number of calories per serving next to the “percent fat free” claim on the front of its product packaging, the labels are “somehow misleading by association, since Hormel’s products are on grocery shelves next to Kraft’s products.”…
Two putative class actions alleging that companies making and selling extra virgin olive oil (EVOO) sell their products at a premium despite their failure to meet certain EVOO standards have been dismissed by a federal court in Florida because the plaintiffs did not adequately plead their claims under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Meyer v. Colavita USA, Inc., No. 10-61781, Nachio v. Am. Rice Inc., No. 10-61793 (S.D. Fla., decided September 13, 2011). The defendants claimed in their motions to dismiss that the complaints were based on a flawed UC Davis study that analyzed a small sample of olive oil purchased in California and that the plaintiffs failed to either allege that the products they purchased were not EVOO as the companies claimed or that they had been harmed. The court agreed that the UC Davis results were…
Concluding that “dolphin-safe” tuna product labels authorized by the U.S. Commerce Department “are more trade-restrictive than necessary to achieve a legitimate objective,” a World Trade Organization (WTO) panel has given a partial victory to Mexico, which filed a complaint in 2009 claiming that the labels were illegal because they excluded Mexican yellowfin tuna from the U.S. market and shut down one-third of its tuna fleet. The WTO panel rejected Mexico’s claim that the U.S. labeling provisions discriminate against its tuna products, finding “that Mexican tuna products are not afforded less favourable treatment than tuna products of the US and other origins in respect of the US dolphin safe labeling provisions on the basis of their origin.” Still, the panel recommended that the United States be asked “to bring its measures into conformity with its obligations” under the Technical Barriers to Trade agreement. Mexican Economy Secretary Bruno Ferrari reportedly responded to news…
According to a news source, Del Monte Fresh Produce NA Inc. has indicated, as part of its campaign to counter allegations that its cantaloupes, imported from Guatemala, were tainted with Salmonella, that it intends to sue the Oregon Health Authority and a public health official for making “misleading allegations” about its products. Company Vice President Dennis Christou reportedly said, “These statements were made despite the lack of a substantive factual basis for the allegations and the failure to adequately investigate the true source of the contamination.” Information about litigation Del Monte filed against the Food and Drug Administration (FDA), seeking to lift an import alert related to its Guatemalan cantaloupes appears in Issue 407 of this Update. The Center for Science in the Public Interest (CSPI) has criticized the company for taking action against government agencies, stating in a press release, “FDA and Oregon used state-of-the-art techniques to identify the food…
A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (S.D. Cal., filed August 24, 2011). Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food…
A federal court in California has denied the defendant’s motion to dismiss the plaintiffs’ first amended consolidated complaint in a case involving claims that “Ferrero misleadingly promotes Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of fat and sugar.” In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided August 29, 2011). According to the court, the plaintiffs sufficiently pleaded exposure to a long-term advertising campaign and reliance on the campaign in making their purchasing decisions to confer standing on them to bring their claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act.
