Category Archives Litigation

The National Organic Program can continue to include foods grown through hydroponics following a ruling from a California federal court holding that the U.S. Department of Agriculture (USDA) acted reasonably in concluding that the statutory scheme does not exclude hydroponics. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., entered March 18, 2021). The Center for Food Safety (CFS) had sought to limit foods labeled as "organic" to only foods grown in soil, but the USDA denied the advocacy group's petition. "The petition denial should not be disturbed because USDA reasonably defends its determination that [the Organic Foods Production Act (OFPA)] does not compel the prohibition of hydroponics," the court held. "USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA. It therefore provides the 'reasonable explanation' required on review, so its denial will not be vacated."

A California federal court has ruled that the state "has not shown that the cancer warnings it requires are purely factual and uncontroversial" or "that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning." Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that "some evidence does support such an inference" that eating food with acrylamide will increase a person's risk of cancer, but "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most…

A Minnesota federal court has ruled that the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) violated the Administrative Procedures Act (APA) when it adopted the New Swine Inspection System (NSIS), which eliminated line speed limits for pork processing. United Food & Com. Workers Union, Local 663 v. USDA, No. 19-2660 (D. Minn., entered March 31, 2021). The court found that the final rule establishing the NSIS "contains no discussion, analysis, or evaluation of the worker safety comments" that it received during the notice-and-comment period. "The only response FSIS gave to the worker safety comments it solicited was to state that it lacked authority to regulate worker safety. In context, the agency appeared to suggest that it wanted to consider the comments but was not legally permitted to do so," the court held. "By offering its lack of legal authority and expertise on worker safety as its only…

Kilwins Quality Confections Inc. sold chocolate and other candy products in containers that "materially overstate the volume of the contents," according to a plaintiff. Rand v. Kilwins Quality Confections Inc., No. 21-1513 (N.D. Ill., E. Div., filed March 18, 2021). The consumer argues that the company's shredded-chocolate containers "materially overstate the actual volume of, and the number of servings contained in, the containers and packaging in which they are advertised and sold and similarly materially understate the caloric content of a serving." The jars of chocolate were labeled as containing 20 servings of two tablespoons despite containing only 16 servings of that size, the plaintiff argues, and the caloric content of one serving is 140 calories rather than 110 calories as listed on the package. "While Kilwins has recently quietly corrected labeling on the mislabeled products, it has failed to compensate thousands of consumers who, over the three (3) to…

Three consumers have filed a putative class action alleging Kombucha 221 B.C. sells kombucha that contains "more than twice the allowed alcohol" for a nonalcohol beverage. Brothers v. Mad at S.A.D. LLC, No. 21-60542 (S.D. Fla., filed March 9, 2021). The plaintiffs, who allege they purchased the kombucha for consumption at work, argue that the kombucha beverages "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcoholic consumption may pose a grave and immediate safety risk." The complaint asserts that the nature of kombucha allows the product to continue fermenting, growing to a higher percentage of alcohol by volume by the time the product is consumed. "While Plaintiffs do not know whether BC Kombucha is below 0.5 alcohol by volume at the moment it leaves Defendant’s distribution center, what is clear is that the beverages are significantly above…

Philadelphia and three other municipalities have filed a lawsuit challenging Pennsylvania's prohibition of bans on plastic or single-use bags. Philadelphia v. Penn., No. 42 MD 2021 (Penn. Commw. Ct., filed March 3, 2021). "To combat the destructive environmental impact of single use plastic bags, states and cities across the country have enacted laws restricting distribution of single-use plastic bags by retailers," the complaint argues. The plaintiff cities assert that Pennsylvania has prevented them from taking action on limiting plastic bags. "In both 2019 and 2020, the Pennsylvania General Assembly used the annual fiscal code amendment – a must-pass omnibus-style bill that implements the state’s budget – to sneak in a provision prohibiting plastics legislation by Pennsylvania municipalities into state law," they allege. "Petitioners are now indefinitely barred from enacting or enforcing local single-use plastics ordinances. Petitioners Philadelphia, West Chester, and Narberth wish to move forward with enforcement of their ordinances, but…

A California appeals court has declined to revive a lawsuit alleging that packaging for Foster Poultry Farms Inc. products misleads consumers by featuring a certification that the animals are treated humanely. Leining v. Foster Poultry Farms Inc., No. B291600 (Cal. App. Ct., 2nd Dist., entered February 23, 2021). The plaintiff had alleged that she believed the logo to indicate that the animals were treated humanely according to a reasonable consumer's standard rather than according to the industry's standards; the trial court granted Foster Farms summary judgment, finding that the American Humane Association's certification program was "independent, reasonable, and involved some level of expertise." The appeals court found that the plaintiff's causes of action were preempted by the Poultry Products Inspection Act (PPIA) because the labels were preapproved by the Food Safety and Inspection Service. If the plaintiff "were to prevail on her tort claims that the labels were nonetheless misleading,…

A New York federal court has dismissed a lawsuit against Oregon Chai Inc. for failure to state a claim in litigation centered on whether using the term "vanilla" on packaging is misleading to consumers. Cosgrove v. Oregon Chai Inc., No. 19-10686 (S.D.N.Y., entered February 22, 2021). "In the past two years, counsel for Plaintiffs [] has filed numerous class action complaints across the country, including several in this District, challenging food manufacturers’ use of the term 'vanilla' in their descriptions or advertising," the decision begins. "In nearly all of these cases, the district court ultimately found that the plaintiffs had failed to state a viable claim for relief. This time, Plaintiffs challenge Defendant Oregon Chai, Inc. [], claiming that Defendant’s use of the term 'vanilla' and other statements on the packaging of its chai tea latte powdered mix is misleading to consumers. As set forth in the remainder of this Opinion,…

A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.

A plaintiff has filed a putative class action alleging Demoulas Super Markets Inc. includes representations on its Market Basket coffee indicating that the tins hold 76 to 79 cups of coffee but only contain 37 to 39 cups when prepared according to the label's instructions. Cohen v. Demoulas Super Mkts. Inc., No. 21-10177 (D. Mass., filed February 2, 2021). "This means that consumers of the Products, including Plaintiff, were cheated out of 51% of the servings they paid for, in both cases, based on the advertising, marketing, and labeling of the Products," the complaint asserts. The plaintiff alleges claims of unjust enrichment as well as breach of express warranty and untrue and misleading advertising under Massachusetts General Laws.

Close