A consumer has filed a putative class action alleging Storck USA, L.P., maker of Werther’s, packages Original Sugar Free Chewy Caramels with nonfunctional slack fill and misrepresents the effect of maltitol syrup on blood glucose levels. Kpakpoe-Awei v. Storck USA L.P., No. 18-1086 (S.D.N.Y., filed February 7, 2018). The complaint alleges that nontransparent 2.75-ounce bags of the candy contain as much as 69 percent slack fill while comparably sized 5-ounce bags of regular Chewy Caramels contain only 33 percent slack fill. Claiming violations of New York state consumer-protection laws, false advertising and fraud, the plaintiff seeks class certification, an injunction, damages, corrective advertising and attorney’s fees.
Category Archives Litigation
American Beverage Corp., which sells alcohol cocktails under the “Darty” mark, has filed a notice of opposition to Boston Beer Co.’s application for a “Day Party” mark for beer. Am. Bev. Corp. v. Boston Beer Corp., No. 91239170 (T.T.A.B., notice filed January 29, 2018). The notice asserts that the "colloquial meaning of DARTY is 'Day Party.'" American Beverage claims priority in filing and first use date, and the notice alleges that the goods are so similar as to cause consumer confusion about their source.
Bumble Bee Foods LLC has agreed to settle a proposed class action alleging the company’s labels indicate its Medium Red Smoked Salmon Fillet in Oil product contains wild-caught smoked salmon despite actually containing farm-raised salmon with artificial smoke flavoring. Rodriguez v. Bumble Bee Foods LLC, No. 17-2447 (S.D. Cal., motion for settlement filed February 1, 2018). Under the terms of the agreement, Bumble Bee will begin repackaging the product in the second quarter of 2018, specify the salmon is “smoke-flavored,” omit claims that it is “premium” or “medium red” and omit images that suggest the fish was wild-caught. The motion for settlement seeks a hearing date for a motion that will specify the incentive award, the amount of attorney’s fees, and costs.
The Ninth Circuit has granted an en banc rehearing of its September 2017 decision to block a San Francisco ordinance requiring health warnings on sugar-sweetened beverages (SSBs) on the grounds that it unduly burdened and chilled speech protected by the First Amendment. Am. Beverage Ass’n. v. City & Cty. of San Francisco, No. 16-16072 (9th Cir., entered January 29, 2018). The September ruling overturned a 2016 district court decision determining that the city’s interest in public health and safety was a reasonable basis to enforce the ordinance, which required black-box warning labels on all advertising for SSBs that could take up as much as 20 percent of the advertising space. In addition, the Pennsylvania Supreme Court has agreed to hear a challenge to Philadelphia’s SSB tax that claims the 1.5 cent-per-ounce tax violates state law; the challengers allege that because the tax is levied on distributors and ultimately borne by…
The Canadian Plastic Bag Association (CPBA) has petitioned a British Columbia court to quash a “checkout bag regulation bylaw” passed by the city of Victoria, arguing the municipality does not have the legal authority to enact the rule. Canadian Plastic Bag Ass’n v. City of Victoria, No. S-180740 (S.C.R. British Columbia, filed January 22, 2018). On January 18, 2018, the Victoria City Council adopted a bylaw that prohibits businesses from providing single-use plastic shopping bags to customers and mandating them to charge from C$.15 for paper or C$1 for reusable bags. CPBA alleges that the city’s municipal powers are defined by British Columbia’s Community Charter, Spheres of Concurrent Jurisdiction—Environmental and Wildlife Regulation and the Environmental Management Act; taken together, the group argues, the provincial laws do not authorize individual municipalities to “regulate, prohibit or impose requirement[s]” related to either solid waste management or the sale or dispensing of plastic bags.…
A Florida magistrate has recommended that a district court deny Chipotle Mexican Grill Inc.’s motion for $1.5 million in attorney’s fees and costs after the company was granted summary judgment against claims that its advertising misled consumers into believing its food products only contained ingredients free of genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., report and recommendation filed January 26, 2018). Although Florida’s Deceptive and Unfair Trade Practices Act (FDUPTA) permits prevailing parties to recover costs and fees, the magistrate noted that the trial court has broad discretion to consider various factors, including: (i) the scope and history of the litigation; (ii) the ability of the non-prevailing party to satisfy an award; (iii) whether an award of fees would deter similar litigants; (iv) the merits of the respective positions; and (v) whether the claim was brought to resolve a significant legal issue. The…
The U.S. Court of Appeals for the Ninth Circuit has vacated and remanded a lower court’s grant of summary judgment in favor of Whole Foods Market Inc. in a trademark infringement case related to the company’s “Eat Right America” promotion. Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., No. 15-35524 (9th Cir., entered January 29, 2018). Plaintiff Eat Right Foods (ERF), a New Zealand-based maker of organic foods, registered U.S. marks for “EatRight” and “Eat Right” in 2001 and 2003; ERF has also sold a line of gluten-free cookies to Whole Foods. In 2009, Whole Foods contracted with Nutritional Excellence, LLC, which previously did business as “Eat Right America,” to use a food-scoring system to advertise the nutritional value of products to shoppers. In early 2010, an ERF executive discovered Whole Foods using an “Eat Right America” promotion and contacted Whole Foods to suggest the grocery buy its brand…
A California federal court has refused to dismiss a trademark infringement and right of publicity lawsuit filed by the estate of Thelonious Monk against a craft brewery selling “Brother Thelonious Belgian Style Abbey Ale,” finding the estate sufficiently pleaded all causes of action. Monk v. North Coast Brewing Co., No. 17-5015 (N.D. Cal., entered January 31, 2018). Monk’s son had agreed to allow North Coast Brewing Co. to use the musician’s name, likeness and image on the ale in exchange for the brewery’s donation of a portion of the profits to the Thelonious Monk Institute of Jazz, but he allegedly revoked his consent because the brewer extended the use to apparel and other merchandise. The court found plausible that the estate had a protectable interest in Monk’s name, image and likeness and that it had alleged enough facts to support a possible finding of likelihood of confusion. Although it noted…
A California federal court has ruled that plaintiffs alleging they might purchase Carrington Tea Co.'s coconut oil products in the future have established standing sufficient to withstand a motion to dismiss. Zemola v. Carrington Tea Co., LLC, No. 17-0760 (S.D. Cal., entered January 24, 2018). The court had previously determined that the plaintiffs lacked standing to pursue an injunction because they failed to allege they would purchase the products in the future, but the U.S. Court of Appeals for the Ninth Circuit later ruled in an unrelated case that plaintiffs can seek injunctions if they plausibly allege that they "will be unable to rely on the product’s advertising or labeling in the future, and so will not purchase the product in the future,” or that they "reasonably, but incorrectly" assume that the product had been improved. Because one plaintiff alleged that he would like to purchase Carrington’s products in the…
Barcel USA, maker of Takis chips, faces a putative class action filed by a plaintiff alleging that four-ounce bags of Zombie and Guacamole tortilla chips contain as much as 64 percent nonfunctional slack-fill. Morrison v. Barcel USA, LLC, No. 18-531 (S.D.N.Y., filed January 22, 2018). The plaintiff compared the Takis bags to similarly sized bags of Doritos chips, which allegedly contain 33 percent slack fill. She alleges that her economic injury was equivalent to the proportion of the purchase price she paid for the slack-fill. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.
