The Center for Environmental Health, the Center for Food Safety, Cultivate Oregon, and the International Center for Technology Assessment have filed a complaint for declaratory and equitable relief against Secretary of Agriculture Sonny Perdue, alleging that the U.S. Department of Agriculture's (USDA's) withdrawal of the Organic Livestock and Poultry Practices rule (OLPP) violated both the Organic Foods Production Act (OFPA) and the Administrative Procedures Act (APA). Ctr. for Envt’l Health v. Perdue, No. 18-1763 (N.D. Cal., filed March 21, 2018). The complaint alleges that USDA’s first rationale for withdrawal of the OLPP, that it lacked the authority to set standards for livestock production, is “contrary to the plain language of OFPA, which unambiguously requires USDA to promulgate additional standards for the care of livestock based on NOSB (National Organic Standards Board) recommendation." The rationale was not a permissible interpretation of the OFPA's requirements, the complaint asserts, and is arbitrary and capricious.…
Category Archives Litigation
A jury in Pennsylvania federal court has awarded $200,000 to a former Mondelez employee who alleged the company discriminated against her because of her age and terminated her after she complained of the alleged discrimination. Konsavage v. Mondelez Global LLC, No. 15-1155 (M.D. Pa., verdict issued March 19, 2018). The plaintiff, who worked for Nabisco and its successor Mondelez for 31 years, reportedly said that beginning in 2013 a new supervisor told her that she should reduce her workload to give younger employees a chance, that she lacked agility and that she had no potential at her age. The following year, she was allegedly demoted and forced to take a $9,000 pay cut before being fired a few months later. The jury awarded her emotional distress damages pursuant to the Pennsylvania Human Relations Act.
Rebbl Inc. faces a putative class action alleging its “super herb” beverages are falsely advertised and labeled because the claims made for their ingredients are “not supported by sound scientific evidence.” Richburg v. Rebbl Inc., No. 18-1674 (E.D.N.Y., filed March 16, 2018). The complaint alleges that beverages in Rebbl’s product line of “Elixirs” and “Proteins” contain several ingredients—turmeric, reishi, maca, matcha, ashwaganda, medium chain triglyceride oil and coconut milk—that the company falsely asserts can reduce stress and improve beauty, health or wellness. Claiming violations of New York’s General Business Law, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
A California state court has reportedly approved a class action settlement that will provide vouchers or cash to state residents who bought Safeway olive oil allegedly falsely labeled as “imported from Italy.” Kumar v. Safeway, No. RG14726707 (Cal. Super. Ct., entered March 16, 2018). The class alleged that Safeway labeled its olive oil as imported and “extra virgin” but manufactured it from olives grown and pressed outside Italy. The settlement reportedly offers class members $0.25 to $0.75 or vouchers worth up to $1.50; attorneys were awarded more than $1.4 million in fees and expenses and the named plaintiff will receive $6,490.
A California federal court has dismissed with prejudice a putative consolidated class action alleging that Quaker Oats Co. falsely advertised its instant oatmeal as containing maple syrup, finding that the plaintiffs were unable to allege conduct not preempted by the federal Food, Drug and Cosmetic Act (FDCA). In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litig., No. 16-1442 (C.D. Cal., entered March 8, 2018). The court previously found that flavoring claims were preempted by the FDCA and the Nutritional Labeling and Education Act, but the court also allowed the plaintiffs to replead so it could consider preemption from the standpoint of maple as a sweetener. In its reconsideration, the court noted that, “to evade preemption at this stage, Plaintiffs would need to either allege that the Products’ labels violate the FDA’s sweetener requirements or raise claims that are not addressed by federal law.” Because the amended complaint did…
A consumer has filed a putative class action alleging boxes of Cookie Dough Bites, made by Taste of Nature Inc., contain up to 58 percent slack fill. Gillespie v. Taste of Nature, Inc., No. 18-2105 (C.D. Cal., filed March 13, 2018). The complaint alleges that the candies are packed in a plastic pouch inside the box that makes the box appear to be more than half full, but if the candy is removed from the pouch and poured back into the box, the box appears to be about one-third full. Claiming violations of California’s consumer-protection laws, the plaintiff seeks class certification, injunctive relief, damages, restitution and attorney’s fees.
American Dairy Queen Corp. has filed a lawsuit challenging W.B. Mason Co.'s application for a “Blizzard” trademark for its bottled water. Am. Dairy Queen Corp. v. W.B. Mason Co., Inc., No. 18-0693 (D. Minn., filed March 12, 2018). Dairy Queen alleges that it trademarked “Blizzard” for milkshakes in 1946 and has extended the mark to ice milk, ice cream, soft serve, machinery and restaurant services. The complaint asserts that the Blizzard marks are “widely recognized by the general consuming public of the United States as a designation of source of Dairy Queen’s goods and services.” Alleging trademark infringement, unfair competition by false designation, trademark dilution, unfair competition and violation of Minnesota’s deceptive trade practices law, Dairy Queen seeks an injunction barring W.B. Mason from using the Blizzard mark, destruction of packaging and advertising materials, award of profits generated from use of the infringing mark and attorney’s fees.
I Heart Foods Inc. faces a putative class action alleging that its "I Heart Keenwah" Quinoa Puffs contain mostly rice and pea protein rather than the quinoa implied by the product name. Ransom v. I Heart Foods Inc., No. 18-1465 (E.D.N.Y., filed March 8, 2018). According to the complaint, Quinoa Puffs are made from quinoa flour, brown and white rice flours and pea protein concentrate. Manufacturing methods for “puffed extrusion foods” require ingredients that have a low fat and high starch content, the plaintiff asserts, and the high levels of lipids in quinoa suggest that the product is mostly made of rice. In addition, the complaint argues that because pea protein has five times the amount of protein contained in quinoa, the label’s claim of five grams of protein per serving is likely due to the pea protein. Alleging violations of New York consumer-protection laws, breach of warranties, fraud and unjust enrichment,…
The Organic Consumers Association (OCA) has announced the settlement of a lawsuit alleging Handsome Brook Farms mislabeled eggs as “Pasture Raised” despite being sourced from non-pasture producers or from producers not meeting standards for pasture-raised products. OCA noted that since the suit was filed, Handsome Brook's new management has developed internal audit processes and supply chain management to ensure compliance with American Humane Association standards for pasture-raised eggs. The settlement includes Handsome Brook’s agreement to participate in independent third-party auditing of its sales and purchase records for 18 months.
The U.S. Court of Appeals for the Seventh Circuit has ruled that the Guinness World Records holder for hacky sack kicks has no valid claims for false advertisement, false endorsement or right of publicity against Wendy’s International Inc., which distributed a hacky sack with a children’s meal and challenged children to break the plaintiff's record. Martin v. Wendy's Int'l Inc., No. 15-6998 (7th Cir., entered March 9, 2018). An Illinois district court previously dismissed the plaintiff’s suit for failure to state a claim. “No reasonable consumer would think [the plaintiff] endorsed the footbags,” the appellate court held, because “Guinness World Records” was printed on both the toy and its packaging and the instructional card identified the plaintiff as the holder of the record rather than an endorser. The court also found that “no reasonable consumer would believe that free toys accompanying kids’ meals to encourage intra-family play were the same…
