Category Archives Litigation

A New York federal court has dismissed some claims while allowing others to continue in a lawsuit alleging Whole Foods Market Group Inc. misleads consumers by not using graham flour to produce or honey to sweeten its "honey graham crackers." Campbell v. Whole Foods Mkt. Grp. Inc., No. 20-1291 (S.D.N.Y., entered February 2, 2021). The court found that the plaintiff adequately pleaded allegations that "the references to 'honey' and 'graham' on the product’s packaging are likely to lead a reasonable consumer to wrongly believe that these graham crackers contain more whole-grain flour than non-whole grain flour, and that honey is their predominant sweetener," so claims under the New York General Business Obligation Law can continue. The court dismissed a claim of negligent misrepresentation, finding the plaintiff "failed to allege the existence of a special relationship giving rise to a duty to speak on the part of the Defendant." The plaintiff's…

A California federal court has denied a motion to dismiss an advocacy group lawsuit brought against the U.S. Department of Agriculture (USDA) challenging the implementation of the Food Safety and Inspection Service's New Swine Inspection System (NSIS). Ctr. for Food Safety v. Perdue, No. 20-0256 (N.D. Cal., entered February 4, 2021). The plaintiffs, several advocacy groups including the Center for Food Safety and Food & Water Watch, argued that the rule change violated the Administrative Procedure Act. The court found that the plaintiffs could reasonably argue a "credible threat," a standard in threatened environmental harm cases that "also applies to food safety cases such as this one." "Here, Plaintiffs allege that the new NSIS procedures outlined in the Final Rule erode several important features of the traditional inspection process increasing the likelihood that adulterated pork products will enter the food supply and thus putting their members at risk of illness…

California Attorney General Xavier Becerra filed a lawsuit against five importers, wholesalers and distributors of seafood, alleging they sell fish with levels of cadmium and lead high enough to require warnings governed by the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). California v. Pacific Am. Fish Co. Inc. (Cal. Super. Ct., filed December 28, 2020). The companies—Pacific American Fish Company, Rhee Bros., Seaquest Seafood Corporation, Jayone Foods and Clearwater Seafoods—sell products such as clams, mussels, octopus, oysters, squids and snails. “When California's consumers, restaurants, and supermarkets purchase seafood, they shouldn’t have to worry about whether the products they’re buying contain toxic chemicals,” Becerra said in a press release. “The seafood industry has a responsibility to ensure the safety of its products – and to warn consumers of any risks. I hope this lawsuit serves as a warning to any company that might skirt its responsibilities under Proposition 65. The California…

A putative class action has alleged that Subway Restaurants Inc. sells tuna products that "do not contain any tuna nor have any ingredient that constitutes tuna"—the products "are completely bereft of tuna as an ingredient," according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). "As independent testing has repeatedly affirmed, the Products are made from anything but tuna," the complaint asserts. "On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as 'tuna' to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as 'tuna.'" The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs…

Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.'s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text "Traditional Icelandic Skyr" and photos of an Icelandic countryside, "gives consumers the belief it is made in Iceland," the complaint asserts. Although the back of the package indicates that the product is "made in Batavia, NY with domestic and imported ingredients," the plaintiffs allege they "relied upon the representations and indications of the Product's origins - literally and figuratively - in Iceland, and desired to purchase such a product." Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania's consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney's fees.

A D.C. Superior Court has denied Smithfield Foods' motion to dismiss a lawsuit alleging it misleads consumers by marketing its products as "safer pork." Organic Consumers Assn. v. Smithfield Foods Inc., No. 2020 CA 2566 B (D.C. Super. Ct., entered December 14, 2020). The lawsuit, filed by the Organic Consumers Association (OCA), alleged that Smithfield "employs production practices that result in less-safe conditions, effects, and Products, including the routine preventative use of medically important antibiotics, crowded conditions, the use of potentially carcinogenic drugs, and rapid slaughter methods." The court disagreed with Smithfield's argument that the marketing statements were puffery or "too general to be actionable," finding that the statements Smithfield made about its safety were specific. Further, OCA's "allegations about consumer understanding are plausible," the court held, because the complaint cited sources "stating that food safety is an issue of significant concern to consumers" and studies showing "that a 'reasonable consumer'…

A plaintiff has filed a putative class action alleging Dietz & Watson Inc. misleads consumers by naming its product "Smoked Provolone Cheese" when the cheese's smoky flavor comes from "smoke flavor" rather than "slow cooking over a fire of wood chips." Jones v. Dietz & Watson Inc., No. 20-6018 (E.D.N.Y., filed December 9, 2020). The plaintiff alleges the cheese should be labeled "Natural Smoke Flavored Provolone Cheese" under U.S. Food and Drug Administration regulations on characterizing flavors. "Even if consumers were to view the ingredient list, a reasonable consumer would have no reason to know that listing 'smoke flavor' forecloses the possibility the Product was also subject to some smoking," the complaint asserts. "However, the Product has not undergone any real smoking, which is deceptive and misleading to consumers." The plaintiff alleges violations of New York's consumer-protection statutes, the Magnuson-Moss Warranty Act, fraud and negligent misrepresentation.

A consumer has filed a putative class action alleging that Inventure Foods Inc., which produces the T.G.I. Friday's line of frozen foods, produces its "mozzarella sticks" with cheddar. Nason v. Inventure Foods Inc., No. 20-10141 (S.D.N.Y., filed December 3, 2020). The plaintiff cites the ingredient list, which lists only cheddar and not mozzarella, and asserts that "cheddar is a 'hard' cheese less suitable for chewing and lacks the dairy taste of real mozzarella." The complaint further argues that "mozzarella is more nutritious because it contains more calcium and less fat and calories than cheddar." The plaintiff alleges violations of the Magnuson-Moss Warranty Act, New York's consumer-protection statutes and negligent misrepresenation.

A plaintiff has filed a putative class action alleging Diestel Turkey Ranch falsely markets its turkeys as "thoughtfully raised on sustainable family farms with plenty of fresh air and space to roam." Wetzel v. Diestel Turkey Ranch, No. 20-1213 (D.N.M., filed November 19, 2020). The plaintiff argues that Diestel "sources the overwhelming majority of its turkeys from growers outside of Sonora, California, at typical factory farms [], where turkeys are raised in large, overcrowded metal sheds that lack sufficient space to engage in natural behaviors and are often mired in manure and slaughterhouse waste—i.e., not ranches or ranch-like conditions depicted at the Sonora Ranch." The plaintiff alleges violations of New Mexico's false advertising law. Cargill Inc. faces similar allegations in a complaint filed with the Federal Trade Commission by several advocacy groups. "Cargill makes numerous representations that lead consumers to believe the turkeys used in its Products are raised by 'independent family…

The Court of Justice of the European Union (CJEU) has prevented France from banning the marketing of cannabidiol (CBD) "lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds." In its ruling, CJEU found that "CBD cannot be classified as a 'narcotic drug,'" and although France is "not required to demonstrate that the dangerous property of CBD is identical to that of certain narcotic drugs," the country "must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations. A decision to prohibit the marketing of CBD, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in other Member States, can be adopted only if that risk appears sufficiently established."

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