A California resident has filed a putative class action against the companies that make, distribute and sell Four Loko®, a 6- to 12-percent alcoholic beverage with caffeine. Richardson v. Phusion Projects, LLC, No. 11-0456 (S.D. Cal., filed March 4, 2011). The plaintiff alleges that she purchased Four Loko Fruit Punch at $3 per can based on its advertising and labeling, which purportedly failed to warn her “of the particular dangers of drinking a caffeinated beverage with high alcoholic content.” She alleges that she was misled into purchasing a dangerous beverage and claims “injury in fact and a loss of money or property in that she has been deprived of the benefit of her bargain and has spent money purchasing Four Loko at a price premium when it actually had significantly less value than was reflected in the price she paid for it.” The complaint alleges unfair competition, false advertising, violation…
Category Archives Litigation
The Cornucopia Institute, a consumer watchdog and proponent of “family-scale farming,” has reportedly filed a complaint with the Federal Trade Commission (FTC), alleging that an Oregon-based cereal maker is misleading consumers with its “all natural” product claims. According to the institute, Hearthside Food Solutions, which makes Peace Cereal, labels its products as “natural” and then states on its website that “natural foods are foods without pesticides or artificial additives, as well as being minimally processed and preservative-free.” Noting that the federal government has not adopted a definition of or requirements for “natural” food products, the Cornucopia Institute alleges that by using conventionally grown food ingredients, Hearthside is selling products routinely sprayed with pesticides and herbicides. Peace Cereal was apparently certified organic in the past, but has not been since 2008. Yet, according to the Cornucopia Institute, stores in several states continue to carry “organic” signs on shelves containing non-organic Peace…
U.S. attorneys in New York have filed a complaint against three veal producers for allegedly exporting meat containing vertebral column to Japan, which had just reopened its borders to U.S. imports after a two-year ban over a bovine spongiform encephalopathy (“mad cow”) scare. United States v. Atl. Veal & Lamb LLC, No. 11-1034 (E.D.N.Y., filed March 3, 2011). Under U.S.-Japan trade agreements, beef and beef products cannot contain vertebral column, and when Japanese inspectors discovered the breach, it immediately again closed its borders to U.S. beef imports, allegedly costing the U.S. livestock, beef and meat industry “at least $500 million in losses.” The prosecutors seek to enjoin the defendants from violating U.S. Department of Agriculture regulations and allege that unless enjoined, the companies “will continue to sell and offer for transportation in commerce misbranded meat and meat food products for human consumption abroad that fail to comply with [export verification]…
A federal court in California has denied a motion for summary judgment filed by the company that makes YoPlus® probiotic yogurt and certified a class of consumers alleging that it misled them in its product marketing. Johnson v. General Mills, Inc., No. 10-00061 (C.D. Cal., summary judgment denied March 3, 2011; class certification granted March 7). The court disagreed with the company’s attempt to characterize its product statements as “either true or . . . untestable and subjective statements of opinion” or “mere puffing.” According to the court, General Mills sought to “isolate each particular statement or image and divorce it from its full context.” Rather, the court determined that “properly considered in context, General Mills successfully communicated a ‘common message that eating Yo-Plus aids in the promotion of digestive health in ways that eating normal yogurt does not.’” The court reportedly granted class certification from the bench. See Law360, March…
A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
Finding no clear state precedent, a federal court in Ohio has certified to the state supreme court a question arising in a case involving insurance coverage for Listeria-contaminated meats that led to the destruction of 1 million pounds of meat products in 2006. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-1686 (N.D. Ohio, order entered March 3, 2011). The question certified is as follows: In light of the Supreme Court of Ohio’s opinion in Anderson v. Highland House Co., 93 Ohio St. 3d 547 (2001), does the reasonable-expectations doctrine apply to a commercial general liability “all-risk” insurance policy, so that coverage, which otherwise would be excluded under the terms and conditions of the policy, is afforded, provided the trier of fact determines that the insured reasonably expected, when purchasing the policy, that the policy would cover the loss at issue. HoneyBaked Foods claimed a loss of approximately $8 million under…
An insurer that issued commercial umbrella policies to a company that makes flavorings ingredients, including those used in butter-flavored microwave popcorn, is seeking a declaration that it has no obligation under those policies to defend or indemnify the company in lawsuits alleging respiratory injury from exposure to diacetyl. Continental Cas. Co. v. Citrus & Allied Essences Ltd., No. 650548/2011 (N.Y. Sup. Ct., filed February 28, 2011). More than 50 diacetyl lawsuits have apparently been filed against the ingredients supplier by individuals alleging workplace exposures. The insurer contends among other matters that it was not timely notified about some of the suits, the injuries did not occur during the policy coverage period, pollution exclusions preclude coverage, and the insured has settled lawsuits without the insurer’s consent.
The Ninth Circuit Court of Appeals has reversed a district court ruling that would have required those who had planted genetically engineered (GE) sugar beet seedlings to destroy the crop. Ctr. for Food Safety v. Vilsack, Nos. 10-17719, -17722 (9th Cir., decided February 25, 2011). The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) had issued permits allowing the GE sugar beet seedlings to be planted in select, remote areas and imposing conditions prohibiting flowering or pollination before the permits expired on February 28, 2011. The plaintiffs challenged those permits because they were issued before APHIS had completed an environmental impact statement, which was required by a previous court order, and the district court concluded that they were likely to prevail on the merits. Additional details about the case appear in Issues 366 and 374 of this Update. While the Ninth Circuit agreed with the lower court that…
The U.S. Supreme Court has determined that a Freedom of Information Act (FOIA) exemption barring the release of law enforcement records whose release “could reasonably be expected to constitute an unwarranted invasion of personal privacy” is inapplicable to documents provided to a federal agency by a corporation. FCC v. AT&T, Inc., No. 09-1279 (U.S., decided March 1, 2011). Expressing the wish that “AT&T will not take it personally,” Chief Justice John Roberts, writing for the 8-0 court, rejected its argument that “personal privacy” under FOIA reaches corporations because the statute defines “person” to include a corporation. The case involved an investigation launched after AT&T voluntarily provided certain information to the Federal Communications Commission (FCC) arising from the company’s participation in a program to enhance schools and libraries’ access to advanced telecommunications and information services. AT&T apparently reported that it might have overcharged the government for its program services. While the…
A British Columbia resident who operates a “cowshare” that produces and distributes raw milk to members has filed a lawsuit against the provincial government challenging a regulation that prohibits the sale of milk that has not been pasteurized. Jongerden d/b/a Home on the Range v. The Queen, No. S-111196 (Sup. Ct., British Columbia, filed February 23, 2011). According to the complaint, the plaintiff has been cited for packaging and distributing raw milk for human consumption and was further cited for contempt when she continued to sell the milk after labeling it as “not for human consumption.” The plaintiff contends that raw milk has beneficial health effects and that the ultra vires regulation has prevented her from obtaining and consuming raw milk from a lawful source.
