Following a settlement with California district attorneys making similar allegations, Russell Stover and Ghirardelli Chocolates have been targeted in a New York putative class action alleging the companies' chocolate packages are "predominantly empty" "through the large void spaces which comprise most of the packaging interior around the actual few items contained therein." Faison v. Russell Stover Chocolates LLC, No. 19-0721 (E.D.N.Y., filed February 5, 2019). The complaint asserts that consumers cannot see the chocolates in the opaque packaging, "causing them to believe the chocolate contents filled all, most, or more of the packaging than they actually did." The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for allegations of unjust enrichment, fraud, negligent misrepresentation, breach of warranties and violations of New York's consumer-protection statutes.
Category Archives Litigation
An en banc U.S. Court of Appeals for the Ninth Circuit has held that a district court abused its discretion by denying the American Beverage Association and the California Retailers Association a preliminary injunction that would prevent San Francisco’s ordinance regulating advertisements for sugar-sweetened beverages (SSBs) from taking effect. Am. Beverage Ass’n v. City & Cty. Of San Francisco, No. 16-16072 (9th Cir., entered January 31, 2019). The court found that the amount of space required for the mandatory health disclosure on SSB ads—20 percent—“is not justified and is unduly burdensome when balanced against its likely burden on protected speech.” The Supreme Court “made clear… that a government-compelled disclosure that imposes an undue burden fails for that reason alone,” the Ninth Circuit stated, before noting that the “remaining factors of the preliminary injunction test also favor an injunction. Because Plaintiffs have a colorable First Amendment claim, they have demonstrated that…
Ghirardelli and Russell Stover have agreed to pay $750,000 to settle allegations brought by the district attorneys of several California counties, according to a Yolo County press release. The California counties alleged that the chocolate companies “packaged certain chocolate products in oversized containers which can give consumers the misleading appearance that they are purchasing more product than they are actually receiving.” In addition, Ghirardelli allegedly misrepresented the amount of cocoa in one of its products. “Consumers have the right to expect full value in their purchases and compliance with packaging requirements is an integral part of the process,” the Yolo County district attorney is quoted as saying. “We will continue to aggressively monitor businesses and prosecute those that violate consumer protection laws.”
Two consumers have alleged that National Beverage Corporation misleads buyers of LaCroix sparkling water because it advertises the products as “all natural” and “100% natural” while they contain flavors composed of “between 36% and 98% synthetic ingredients.” Graham v. Nat’l Beverage Corp., No. 19-0873 (S.D.N.Y., filed January 29, 2019). The complaint cites the Center for Applied Isotope Studies at the University of Georgia, which uses “compound specific stable isotope analysis [] and gas chromatography isotope ratio mass spectrometry to generate multi-component, multi-element data for the enhanced characterization of organic chemical processes and source validation.” The plaintiffs seek class certification, injunctions, damages and attorney’s fees for alleged violations of New York consumer-protection law, unjust enrichment and breach of warranties.
A consumer has filed a putative class action alleging that Barlean’s Organic Oils misrepresents the health benefits of its coconut oils because “coconut oil is actually inherently unhealthy, and a less healthy option” when compared to “butter and various cooking oils.” Testone v. Barlean’s Organic Oils LLC, No. 19-0169 (S.D. Cal., filed January 24, 2019). The complaint asserts that coconut oil—“which is approximately 90 percent saturated fat”—increases the risk of cardiovascular heart disease and stroke, in contrast with representations on the Barlean’s website that its product is “Nature’s Most Versatile Superfood” that is “cold pressed fresh for your vibrant health.” The plaintiff alleges violations of California’s and New York’s consumer-protection statutes and seeks class certification, a corrective advertising campaign, restitution, damages and attorney’s fees.
A consumer has filed a putative class action alleging Mondelez Global LLC misleads consumers by making its Honey Maid graham crackers primarily with white flour rather than graham flour. Kennedy v. Mondelez Global LLC, No. 19-0302 (E.D.N.Y., filed January 15, 2019). The complaint alleges that Honey Maid products are marketed as "graham crackers" while the ingredients panel lists "unbleached enriched flour" first and "graham flour" second. The plaintiff cites Dictionary.com to assert that consumers expect a "graham cracker" to be "a slightly sweet cracker made of whole wheat flour" and that any cracker made with more white than graham flour cannot be called a graham cracker. The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for an alleged violation of New York consumer-protection law, negligent misrepresentation, fraud, unjust enrichment and breach of warranties.
Washington, D.C., brewery Atlas Brew Works has filed a First Amendment lawsuit and motion for preliminary injunction alleging that the federal government's partial shutdown has violated its right to speak because the Alcohol and Tobacco Tax and Trade Bureau has stopped issuing label approvals, causing beer production to halt. Atlas Brew Works v. Whitaker, No. 19-0079 (D.D.C., filed January 15, 2019). The complaint asserts that Atlas "sits on 40 barrels of seasonal, perishable beer—an apricot-infused India pale ale known as The Precious One—that it cannot lawfully label for interstate sale in kegs, as scheduled, for lack of a [Certificate of Label Approval (COLA)]." The brewery alleges that its speech—through labels—is essential to its business because it "cannot sell, and no one will purchase, random unidentified liquids." Atlas argues that its First Amendment rights have been violated because "it cannot be denied the right to speak for lack of meeting an…
The owner of a trademark on "Metchup" has filed an infringement suit alleging that H.J. Heinz Co.'s "Mayochup" is "confusingly similar" to his protected trademark. Perry v. H.J. Heinz Co. Brands, No. 19-0280 (E.D. La., filed January 14, 2019). The plaintiff has purportedly used the "Metchup" mark to sell his ketchup-mayonnaise and mustard-mayonnaise combinations since 2010, and he asserts that Kraft Heinz Co. has infringed on his trademark by using a mark that "bears a particularly strong phonetic similarity to Plaintiff's mark. Depending on pronunciation and/or regional dialect, the marks are virtually indistinguishable from one another." The complaint further cites Google search results for "metchup," which direct searchers to the Heinz website, as evidence that consumers are confusing the two marks. The plaintiff seeks an injunction, destruction of infringing materials, damages and attorney's fees for allegations of counterfeiting, trademark infringement, false designation of origin and violations of Louisiana's business codes.
A plaintiff has alleged that Food for Life Baking Co. Inc. misled consumers by advertising its cereal product, Ezekiel 4:9, as nutritionally superior to comparable cereal products because it is made with sprouted grains. Elliott v. Food for Life Baking Co. Inc., No. 19-0249 (E.D.N.Y., filed January 13, 2019). The complaint asserts that Ezekiel 4:9's labeling makes nutrient claims comparing its sprouted grains to non-sprouted grains without including "any reference food upon which the relative claims are based, which is misleading because there is no way to accurately evaluate the statements regarding the higher nutritional values of sprouted grains compared to non-sprouted grains." In addition, the complaint contests Ezekiel 4:9's assertion that the grains are a "living food" because "by the time the sprouted grain is dried, grounded into flour and heated, any nutritional benefits which may have existed have been extinguished." For allegations of fraud, negligent misrepresentation, unjust enrichment,…
A consumer has filed a putative class action alleging that Tootsie Roll Industries Inc. sold Tootsie Rolls and Tootsie Pops with partially hydrogenated oil (PHO) in 2016, after the U.S. Food and Drug Administration issued a rule declaring PHO unsafe for use in food. Beasley v. Tootsie Roll Indus. Inc., No. 18-7724 (N.D. Cal., filed December 26, 2018). The complaint focuses on the harms of PHO consumption, including elevated risks of diabetes, cancer, organ damage and cognitive decline. The plaintiff asserts that she "suffered physical injury when she repeatedly consumed the Tootsie Products, because consuming artificial trans fat in any quantity, including the quantity she actually consumed, inflames and damages vital organs and increases the risk of heart disease, diabetes, cancer, and death." For an alleged violation of California consumer-protection law and breach of implied warranty of merchantability, the plaintiff seeks class certification, restitution and attorney's fees.
