A federal grand jury has indicted Jeffry Hill of Hill Wine Co. on charges that he sold wine falsely labeled as originating from Napa Valley in California. United States v. Hill, No. 16-CR-0454 (N.D. Cal., indictment entered November 1, 2016). The indictment accuses Hill of growing grapes outside the designated Napa Valley borders and selling the grape juice, bulk wine or bottled wine as made only from Napa Valley grapes, which apparently earned him more than $1.5 million. Hill also allegedly misrepresented the varietals of grapes he sold and created fraudulent bills of lading and inventory records. The indictment asserts that Hill also concealed the true origins of the grapes from his employees by moving grapes between Hill Wine Co.’s three facilities and intercepting trucks shipping grapes to alter the paperwork indicating their origin or varietal. Hill faces eight charges of mail fraud and wire fraud. Issue 622
Category Archives Litigation
A California federal court has dismissed a consumer’s putative class action against AdvancePierre Foods, Inc. alleging the company both physically and financially harmed her by selling her a microwavable sandwich made with partially hydrogenated oil (PHO). Hawkins v. AdvancePierre Foods, Inc., No. 15-2309 (S.D. Cal., order entered November 8, 2016). The court agreed with AdvancePierre’s argument that the U.S. Food and Drug Administration’s June 2015 final determination removing PHO’s status as a material generally recognized as safe for use in food implemented a June 2018 deadline for compliance to avoid allowing consumers to obtain damages for the use of PHO in the meantime. Under the Consolidated Appropriations Act of 2016 (CAA), “No partially hydrogenated oils as defined in the [Final Determination] shall be deemed unsafe . . . and no food that is introduced into interstate commerce that bears or contains a partially hydrogenated oil shall be deemed adulterated . .…
A Missouri appeals court has reversed a lower court’s dismissal of a lawsuit alleging Stonewall Kitchen, LLC misled consumers about its cupcake mix containing sodium acid pyrophosphate (SAPP), which the complaint contended precludes the company from marketing the mixes as “all natural.” Murphy v. Stonewall Kitchen, LLC, No. 104072 (Mo. Ct. App., E.D., order entered November 8, 2016). The trial court determined that because the ingredient list included SAPP, the plaintiff could not claim that Stonewall had failed to disclose its contents within the meaning of the Missouri Merchandising Practices Act (MMPA). Further, it found that the “all natural” description was inherently ambiguous with no clearly settled meaning. The appeals court disagreed, finding that the definition of “all natural” is a question of fact requiring further investigation during discovery. “Furthermore, we expressly reject the notion that the ‘ingredient list’ defense asserted by Stonewall Kitchen defeats [the plaintiff’s] claim as a…
The Organic Consumers Association (OCA) and Beyond Pesticides have filed a complaint against the Sioux Honey Association alleging the company’s Sue Bee® honey products contain the herbicide glyphosate despite being marketed as “Pure” and “Natural.” Organic Consumers Assoc. v. Sioux Honey Assoc. Coop., No. 008012 (D.C. Super. Ct., filed November 1, 2016). The complaint acknowledges that the glyphosate “may be due to the application of glyphosate on crops by neighboring farms and unrelated to beekeeping activities” but argues that the labeling is inaccurate regardless. The plaintiff organizations seek an injunction enjoining the labeling and mandating a corrective advertising campaign as well as costs. “A consumer seeing the words ‘Pure,’ ‘100% Pure’ or ‘Natural’ on a honey product would reasonably expect that product to contain nothing other than honey,” OCA International Director Ronnie Cummins said in a November 1, 2016, press release. “Regardless of how these products came to be contaminated,…
A California federal court has denied Vigo Importing Co.’s motion to dismiss a lawsuit alleging the company mislabels its products as containing octopus when they are actually composed of jumbo squid. Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., order entered October 26, 2016). Vigo Importing sought to dismiss the claim on jurisdictional grounds, arguing that based on its sales figures, the amount in controversy could not possibly meet the $5 million threshold required by the Class Action Fairness Act to allow a federal court to consider the case. The court disagreed, noting that the sales price was only part of the calculation; the potential damages determination requires information on the cost of the products as well as the value of the product if composed of jumbo squid. Details on the complaint appear in Issue 602 of this Update. Issue 621
A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update. After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it. The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what…
The Pennsylvania Supreme Court has denied an application for extraordinary relief filed by several industry groups in an effort to prevent Philadelphia’s 1.5-cent-per-ounce tax on sugar-sweetened beverages (SSBs) from taking effect on January 1, 2017. Williams v. City of Philadelphia, No. 160901452 (Ct. C.P., Philadelphia Cty., order entered November 2, 2016). The one-page order does not provide any reasoning for the decision. The lower court currently presiding over the case has indicated that it will rule on the tax’s legality before the January 1 enforcement date. See The Philadelphia Inquirer, November 2, 2016. Details about the industry lawsuit appear in Issue 617 of this Update. Issue 621
A New York consumer has filed a lawsuit against Buffalo Wild Wings, Inc. (BWW) alleging the company misleads vegetarian customers into believing the restaurant chain offers vegetarian fare when certain offerings are actually cooked in beef tallow. Borenkoff v. Buffalo Wild Wings, Inc., No. 8532 (S.D.N.Y., filed November 2, 2016). The complaint asserts that BWW does not disclose its use of beef tallow in its menu descriptions, nutritional information or website, and further, the usage departs from the industry standard of non-beef cooking oil. The plaintiff seeks class certification, an injunction, compensatory and punitive damages, costs and attorney’s fees for an alleged violation of New York’s consumer-protection statute and unjust enrichment. Issue 621
A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…
A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
