A consumer has filed a putative class action alleging that Mott's Applesauce and Apple Juice products are mislabeled as "natural" because they contain traces of an insecticide. Yu v. Dr Pepper Snapple Grp. Inc., No. 18-6664 (N.D. Cal., San Jose Div., filed November 1, 2018). The plaintiff alleges that reasonable consumers would not expect to find acetamiprid, a synthetic chemical, in a product labeled as "natural." The complaint echoes a similar lawsuit filed by Beyond Pesticides in May 2017; an amended complaint in that lawsuit was filed in October 2018.
Category Archives Litigation
Kervan USA has agreed to change the packaging of its Sunkist fruit snacks and the shape of its candy following a lawsuit filed by Promotion in Motion Inc., which produces Welch's fruit snacks. Promotion in Motion Inc. v. Kervan USA LLC, No. 18-11670 (D.N.J., entered November 6, 2018). Kervan will change the background color of the packages for its fruit snacks to avoid confusion with packages of Welch's fruit snacks, and it will change the shape of its watermelon candies to avoid the use of the "distinctive three-dimensional trapezoid shape" of Promotion in Motion's Sour Jacks. Kervan will also sell off its existing supply of allegedly infringing products and destroy any remaining units after 90 days.
A California federal court has refused to dismiss a putative class action alleging Ocean Spray Cranberries Inc. misled consumers by marketing its products as free from artificial flavors despite containing malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered October 30, 2018). Ocean Spray moved to dismiss the allegations, arguing that "malic and fumaric acids do not function as flavors in their juice products but instead are acidulants used to control the pH and titratable acid levels in their juices." Ocean Spray presented testimony from its vice president of research, development, quality and engineering, who asserted that changing the amount of malic and fumaric acids in the product would not change the flavor but may "create a perceptible difference in mouth feel of the product." The plaintiff's expert, a food scientist, argued that the "small quantity of synthetic malic acid in the Cran-Apple juice drink" would…
Two consumers have filed a putative class action alleging that Kraft Heinz Food Co. misleads consumers by marketing Capri Sun beverages as free of preservatives despite containing citric acid. Tarzian v. Kraft Heinz Food Co., No. 18-7148 (N.D. Ill., E. Div., filed October 25, 2018). "Citric acid serves as a preservative by functioning as an acidity regulator and acidulant," the complaint alleges. "[W]hile citric acid can also be employed to impart taste, a greater quantity of it is required to impart taste than to preserve foods and beverages. The preservative effects of citric acid may be reduced at lower levels, but it will still be present. [] Thus, Defendant cannot argue that it includes citric acid in the Products merely to impart added taste, because the quantities required to impart taste are more than sufficient to function as preservatives." For alleged violations of Illinois and New York consumer-protection statutes, the…
Lenny & Larry's Inc. has agreed to pay $1.85 million in cash and $3.15 million in free products to settle a lawsuit alleging that its Complete Cookie did not provide the advertised amount of protein. Cowen v. Lenny & Larry's Inc., No. 17-1530 (N.D. Ill., E. Div., motion filed September 25, 2018). Under the settlement agreement, class members with proof of purchase can obtain up to $50 in cash or choose to obtain free Complete Cookies with a retail value of up to $30, while those without a proof of purchase can receive $10 cash or $15 of the product. Products that have not been redeemed from the $3.15 million fund "shall be distributed free via retail locations" in all 50 states.
The U.S. Department of Justice has announced that StarKist Co. has agreed to plead guilty to charges alleging the company conspired to fix prices of packaged tuna. The company will face a fine of up to $100 million. "Our citizens' confidence in the ability to buy goods within an unbiased market is key to sustaining an efficient and fair economy,” a press release quotes a special agent as saying. “This investigation stands as a symbol of our commitment to holding corporations and senior leadership accountable and ensuring that activities such as price fixing will not be tolerated.”
The Center for Food Safety and the Center for Environmental Health have filed a lawsuit asserting that the U.S. Food and Drug Administration (FDA) has failed "to promulgate final regulations and complete actions by mandatory deadlines set by Congress in the Food Safety Modernization Act of 2011 (FSMA)." Ctr. for Food Safety v. Azar, No. 18-6299 (N.D. Cal., filed October 15, 2018). The organizations assert that FDA has failed to "classify and designate which foods that are classified as 'high-risk' for foodborne illness purposes" and "to create additional record keeping requirements for facilities handling such foods." The complaint argues that "retailers now have the available technology (e.g., blockchain) to 'identify the origin of certain produce shipments in as little as 2.2 seconds.' … In light of these advances in technology, FDA can no longer shirk the mandatory actions required of it by Congress to designate high-risk foods and issue a…
Two consumers represented by the same plaintiff's attorneys have filed lawsuits alleging food companies misleadingly label their products as natural because they contain malic acid. Morris v. Mott's LLP, No. 18-1799 (C.D. Cal., filed October 4, 2018); Clark v. Hershey Co., No. 18-6113 (N.D. Cal., filed October 4, 2018). The plaintiffs assert that Mott's Assorted Fruit Flavored Snacks and Brookside Dark Chocolate Acai & Blueberry are marketed as free from preservatives and artificial flavorings but contain d-l malic acid, "an undisclosed artificial flavor made from petrochemicals." Both complaints note that "the natural and unnatural forms of malic acid are considered 'GRAS' (generally recognized as safe) for use as flavorings in foods marketed to adults," but "the d-malic acid form, however, has never been extensively studied for its health effects in human beings." The plaintiffs each allege violations of California's consumer-protection statutes and seek class certification, injunctions, damages and attorney's fees.…
Three Nebraska farmers have pleaded guilty to charges of fraud stemming from the sale of grain misrepresented as organic. According to a Department of Justice press release, the men "admitted to growing grain between 2010 and 2017 that was not organic. Each further admitted that they knew the grain was being marketed and sold as organic, even though it was not in fact organically grown. The charging documents allege that, during the 2010 to 2017 period, each of the three farmers received more than $2.5 million for grain marketed as organic." Each defendant faces a possible 20 years in prison and a $250,000 fine.
A consumer has alleged that Apple & Eve markets its Switch Sparkling Juices as containing no added sugar or preservatives despite containing citric and ascorbic acids and having a "high calorie count when compared to competitors' products that do not have the 'No Sugar Added' claim." Reaves v. Apple & Eve LLC, No. 18-5728 (E.D.N.Y., filed October 12, 2018). The complaint asserts that consumers believe the juices to be "a low-calorie product" because of the "no sugar added" marketing message. "Consumers associate claims about the absence of sugar with lower calorie counts when there is no disclaimer stating otherwise," the complaint alleges. "The [U.S. Food and Drug Administration] has reached the same conclusion: 'Consumers may reasonably be expected to regard terms that represent that the food contains no sugars or sweeteners e.g., 'sugar free,' or 'no sugar,' as indicating a product which is low in calories or significantly reduced in…
