A federal court has dismissed multidistrict litigation alleging that several brands' “100% Grated Parmesan Cheese” misled consumers because the products contained as much as 8.8 percent cellulose, finding that the claims were “doomed by the readily accessible ingredient panels on the products that disclose the presence of non-cheese ingredients.” In Re: 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., No. 16-5802 (N.D. Ill., entered August 24, 2017). Additional details about the litigation appear in Issues 595 and 606 of this Update. The court found the cheese's label was ambiguous, noting, “Although 100% Grated Parmesan Cheese might be interpreted as saying the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated. Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and…
Category Archives Litigation
A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…
The Trademark Trial and Appeal Board (TTAB) has affirmed a refusal to grant Empire Technology Development a trademark for “coffee flour,” finding “clear evidence of generic use” of the term. In re Empire Tech. Dev. LLC, Serial No. 85876688 (TTAB, entered August 3, 2017). The company, which created the flour from ground coffee cherry skins, pulp and pectin, claimed first use of the mark in 2012. TTAB found that Empire “failed to develop and promulgate a generic term other than ‘coffee flour’ and to educate the public to use some other name” and used coffee flour as a generic term in its advertising materials and in media coverage. To allow trademark protection for a generic term, even when identified with a first user, would grant the owner a monopoly because a competitor could not describe the product as what it is, the board said. Moreover, the board said Empire’s failure…
A dairy trade group has filed a lawsuit against Wisconsin’s Department of Natural Resources (DNR) alleging that the agency both exceeded its authority and failed to follow required public rulemaking processes when it set new water pollution control regulations affecting dairy and animal feeding operations. Dairy Bus. Ass’n v. Wis. Dep’t of Nat. Res., No. 2017CV001014 (Wis. Cir. Ct., Brown Cty., filed July 31, 2017). The complaint involves recent administrative rules and guidance issued by DNR related to feed storage leachate runoff and calf hutches. DNR is the state agency tasked with enforcement of the federal Clean Water Act and is responsible for issuing state Pollutant Discharge Elimination System permits (WPDES) to entities that discharge pollutants into state waters. The complaint asserts that the goal of the permit system is “parity” with the Clean Water Act (CWA) and state regulations “shall comply with and not exceed the requirements of the…
The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office has reversed a refusal to register “The Cannibal” as a mark for beer to Iron Hill Brewery, finding little likelihood of confusion between the beer and a restaurant called “The Cannibal Beer & Butcher.” In re Iron Hill Brewery, No. 86682532 (TTAB, entered July 28, 2017). The board found that Cannibal Beer & Butcher failed to show that consumers would be confused by Iron Hill's use of "Cannibal" because the beer product that the brewery provides is different from the restaurant services provided by Cannibal Beer & Butcher. "In light of the large number of restaurants in the United States, the facts that a single mark is sometimes used [to] identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer are not sufficient to establish a relationship between restaurant…
A former turkey farmer has filed a lawsuit against Marin County, California, alleging that a land-use ordinance intended to encourage multigenerational housing on family farms places an unconstitutional burden on landowners by requiring them to farm “in perpetuity.” Benedetti v. County of Marin (Cal. Super. Ct., Marin County, filed July 14, 2017). In May 2017, Marin County certified a new land-use plan that requires dwelling units on agricultural lands to be owned by a “farmer or operator actively and directly engaged in agricultural use of the property.” The plaintiff alleges that the plan prevents him from building a second house on his property for his son, who is not involved in his farming business. The plaintiff argues that the policies violate his due process, are an unconstitutional taking of his right to develop his property, and may deprive him of his liberty by forcing him off the land he has…
A consumer has filed a putative class action against PepsiCo alleging that Naked Juice products are mislabeled as “cold pressed” because they also undergo high-pressure processing, “render[ing] the composition of the final product distinct from the intermediate, cold pressed product.” Davis v. PepsiCo, No. 17-4551 (E.D.N.Y., filed August 2, 2017). The complaint alleges that Naked Juice’s “Naked Pressed” product line, which includes nine fruit and vegetable juice blends, are cold pressed but then subjected to high hydraulic pressure, causing the temperature of the juice to rise, degrading “enzymatic, biological and cellular activity” and diminishing overall nutrient content. The plaintiff also asserts that a food product name is intended to refer to a final product, not the product that exists at an “intermediate” stage of manufacturing. Claiming violations of New York consumer-protection laws, fraudulent misrepresentation, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
Pret A Manger faces a putative class action alleging the chain’s wrap packaging hides inches of empty space between sandwich halves. Lau v. Pret A Manger (USA) Ltd., No. 17-5775 (S.D.N.Y., filed July 31, 2017). The complaint alleges that Pret's wraps are packaged in clear plastic sleeves with an opaque cardboard band hiding nonfunctional slack fill between the cut halves. The plaintiff also argues that the sandwiches are misbranded under the Food, Drug and Cosmetic Act and that the act's safe harbor provisions allowing extra space in packaging do not apply to the wraps because they are made and sold at the restaurant’s locations. Claiming violations of New York consumer-protection law and fraud, the plaintiff seeks class certification, damages, restitution, injunctive relief and attorney’s fees. Issue 643
A federal court has dismissed a putative class action alleging Monini North America's truffle olive oils do not contain truffles, holding that the plaintiffs’ concession that the oil tasted and smelled like truffles was fatal to their claims. Jessani v. Monini N. Am., No. 17-3257 (S.D.N.Y., entered August 3, 2017). Additional details about the complaint appear in Issue 633 of this Update. To prevail on a claim of deceptive advertising, a plaintiff must allege that the deceptive behavior was likely to mislead a reasonable customer, the court noted, but Monini's product label calls the product “White Truffle Flavored Olive Oil” and identifies only two ingredients: olive oil and aroma. “Courts routinely conclude that where a product describes itself as substance-flavored despite not containing the actual substance, and the ingredient label truthfully reflects that fact, as a matter of law the product would not confuse a reasonable consumer acting reasonably under…
A federal court has dismissed with prejudice a data-breach suit filed by a group of credit unions against Noodles & Co., holding that the restaurant had no independent duty of care to the unions distinct from its contractual agreements with MasterCard and Visa. SELCO Cmty. Credit Union v. Noodles & Co., No. 16-2247 (D. Colo., order entered July 21, 2017). The plaintiffs, four credit unions whose cardholders’ information was compromised by the data breach, sued for negligence, negligence per se and declaratory relief, claiming they lost revenue due to decrease in card usage after the breach was publicized and incurred costs related to canceling and reissuing cards, responding to cardholder inquiries and monitoring accounts. The court held that economic loss rules in both Colorado and the unions’ home states barred recovery in tort for purely financial losses caused by negligence. Further, the court found, no independent duty exceptions to those…
