Mondelez International Inc. allegedly markets its Oreos as containing "Real Cocoa" despite containing "cocoa processed with alkali." Harper v. Mondelez Int'l Inc., No. 19-2747 (N.D. Cal., filed May 20, 2019). A plaintiff has asserted that the claim "'Always made with Real Cocoa' or 'Real Cocoa' is intended to differentiate the cocoa in the Products from cocoa that has been processed, such as cocoa powder 'processed with alkali,'" and Mondelez allegedly misleads consumers by including processed cocoa rather than unprocessed cocoa in Oreos. "No reasonable consumer would expect the cocoa in the Products to have been processed with alkalis, because 'real' represents the cocoa powder is included in its most unadulterated, non-artificial form," the plaintiff argues. "It is false, deceptive and misleading to conspicuously promote 'real cocoa' without any reference to the presence and use of alkalis either preceding or following because 'real cocoa' without any modifying terms implies the absence…
Category Archives Litigation
Cape Florida Seafood has filed a lawsuit alleging that several companies have "conspired since at least 2015" to fix prices on farm-raised Norwegian salmon. Cape Fla. Seafood v. Mowi ASA, No. 19-22002 (S.D. Fla., Miami Div., filed May 17, 2019). The complaint asserts that salmon prices before 2015 were correlated with the cost of feed protein, while after 2015, "regression analyses indicate that . . . as fishmeal prices declined, farm-raised salmon prices increased." The plaintiff asserts that the regression analyses "are concrete evidence that farm-raised salmon prices were not increasing as a response to costs and, instead, were being affected by Defendants' combination, contract, and/or conspiracy." Cape Florida Seafood seeks class certification and damages for the alleged unlawful restraint of competition in violation of the Sherman Act.
A consumer has filed a putative class action alleging that Stewart's Fountain Classics beverages are misleadingly marketed as having a "Creamy Vanilla Taste" despite containing artificial flavors. Dalton v. Mott's LLP, No. 19-2960 (E.D.N.Y., filed May 19, 2019). The plaintiff admits that the label discloses the product contains artificial flavors but argues that the "nostalgic imagery and glass bottles assist in focusing the consumers' attention on the upper-right characterizing flavor claim, and away from the inconspicuous disclosure of artificial flavors at the bottom of the label." For alleged violations of California's consumer-protection statutes, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney's fees.
A consumer has filed a putative class action alleging that Nature's Path Foods USA Inc. misleads consumers by marketing the filling of its Wildberry Acai Toaster Pastries as containing high levels of acai berries despite containing more apples, raspberries, blueberries and other fruits. Louis v. Nature's Path Foods USA Inc., No. 19-2584 (E.D.N.Y., filed May 1, 2019). The complaint features an image of the front and back labels, alleging that acai berries account for 45 percent of the berries shown in packaging images, and the plaintiff asserts that the "use of the term 'acai' in the Product name and the numerical superiority of the acai berries depicted relative to other berries cause a reasonable consumer to expect the Products contain more acai berries than other identified and named fruit ingredients." The plaintiff also alleges that the ingredient list includes a number of fruits—apples, blueberries, strawberries and others—in whole form but…
Anchor Brewing Co. has filed an opposition against D.G. Yuengling & Son Inc.'s application to register "James River Steam Brewery" as a trademark, arguing that the proposed mark will confuse consumers familiar with its product Anchor Steam. Anchor Brewing Co. v. D.G. Yuengling & Son Inc., No. 91247967 (U.S.P.T.O., opposition filed May 3, 2019). Anchor asserts that it owns the rights to use "Steam Beer," which describes "an indigenous style of beer known as California common beer." The use of "James River Steam Brewery," Anchor argues, "is likely to create the false impression that Applicant's goods are provided by, related to, endorsed by, or associated with Opposer."
Post Consumer Brands LLC allegedly misleads consumers by marketing its Cocoa Pebbles and related products as made with "real cocoa" despite listing only "cocoa (processed with alkali)" in the ingredients panel, according to a consumer's putative class action. Copeland v. Post Consumer Brands LLC, No. 19-2488 (E.D.N.Y., filed April 26, 2019). The complaint asserts that alkali in cocoa affects "the taste and color of the cocoa powder to such an extent that they are a characterizing feature"; further, consumers believing the product to contain "real cocoa" expect "the cocoa powder component to be nutritionally and organoleptically superior than it actually is." For alleged violations of California's consumer-protection statutes as well as negligent misrepresentation, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, restitution, damages and attorney's fees.
The U.S. Federal Trade Commission (FTC) has settled its lawsuit alleging that Gerber Products Co. made false claims about the anti-allergy benefits of Good Start Gentle infant formula, according to an order terminating the action. FTC v. Gerber Prods. Co., No. 14-6771 (D.N.J., entered April 30, 2019). FTC filed the action in response to Gerber's claims that its formula was "the first and only infant formula" that could claim to reduce the risk of developing allergies. Following FTC's lawsuit, consumers made similar claims in a putative class action. The court's order terminates the action but does not provide details about the settlement.
The U.S. Court of Appeals for the Second Circuit has denied a plaintiff's appeal aiming to overturn a lower court's dismissal of a lawsuit alleging that Diet Dr Pepper is misleadingly named because it does not cause weight loss. Excevarria v. Dr Pepper Snapple Grp., Inc., No. 18-1492 (2nd Cir., entered April 17, 2019). "Plaintiffs argue that the use of the word 'diet' in Diet Dr Pepper is misleading because it conveys certain promises about the beverage’s usefulness in assisting with weight loss or healthy weight management, when in fact (Plaintiffs allege, based on a number of studies) the aspartame in Diet Dr Pepper likely causes weight gain," the appeals court stated in its brief opinion. "However, even assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word 'diet' to convey promises about weight loss or management, they have still failed to state a claim…
A New York federal court has dismissed a putative class action alleging that celebrity chef Rachael Ray's brand of dog food, Rachael Ray Nutrish, is misleadingly marketed as "natural" because it contains traces of pesticides. Parks v. Ainsworth Pet Nutrition, LLC, No. 18-6936 (S.D.N.Y., entered April 18, 2019). The court found that the plaintiff could not show that trace amounts of a pesticide would make the marketing of a "natural" product misleading. The plaintiff "asserts that the Products contain trace amounts of glyphosate, but not that the Products are composed of unnatural ingredients," the court found. "Moreover, Plaintiff does not set forth in his complaint the amount of glyphosate in the Products or whether that amount is harmful or innocuous. He argues that '[if] glyphosate is in the Products at any level . . . then the Products cannot be called 'Natural.'' [] But a reasonable consumer would not be…
A plaintiff has filed a putative class action alleging that Mondelez Global's Oreos—marketed as "always made with real cocoa"—are misleadingly marketed because they contain cocoa processed with alkali. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., filed April 17, 2019). The complaint describes the alkali processing method, which "reduces the acidity of cocoa powder," "detracting from the 'real cocoa' taste." The plaintiff asserts that the phrase "'always made with real cocoa' is intended to differentiate the cocoa in the Products from other cocoa ingredients bearing the standard cocoa designation, i.e., 'cocoa' or 'cocoa processed with alkali,' and implies the cocoa present in the Products is nutritionally and organoleptically superior." Further, "[n]o reasonable consumer would expect the cocoa in the Products to have been made with and contain alkalis because 'real,' in modifying the word 'cocoa,' represents the cocoa powder is included in its most simplified form." The plaintiff seeks class…
