A D.C. federal court has denied McCormick & Co.’s motion to dismiss a competitor’s lawsuit alleging the company’s black pepper packaging contains too much slack fill. In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., No. 15-1825 (D.D.C., order entered October 17, 2016). The lawsuit is part of multidistrict litigation joining several consumer class actions with similar allegations. McCormick challenged Watkins Inc.’s standing to sue and asserted that the company failed to state a claim under the Lanham Act, arguing that its packaging does not constitute advertising. The court disagreed, noting, “McCormick argues that size of its pepper tins is not commercial speech, but it is difficult to understand how the size of a package or container could possibly not be considered a form of ‘advertising or promotion.’ [] The size of a package signals to the consumer vital information about a product and is as…
Category Archives Litigation
J.R. Simplot Co. has filed a patent infringement suit against McCain Foods USA, Inc. alleging McCain copied Simplot’s twisted potato fries product, Sidewinders®. J.R. Simplot Co. v. McCain Foods USA, Inc., No. 16-0449 (D. Idaho, filed October 7, 2016). Simplot asserts that its patent, “Spiral Potato Piece,” covers the ornamental features of Sidewinders®, including its “inherently distinctive and nonfunctional” shape, and that side-by-side comparisons indicate “McCain copied Simplot’s patented Sidewinders® design in developing its Twisted Potato products.” Simplot alleges patent and trade dress infringement and seeks damages, an injunction and attorney’s fees. Issue 619
Representing a group of three consumers, the Center for Science in the Public Interest (CSPI) has filed a lawsuit against PepsiCo, Inc. alleging the company’s Naked line misleads consumers by naming and labeling its juices with foods “perceived by consumers to be highly nutritious, like kale,” but manufacturing the products without “the ingredient profile represented.” Lipkind v. PepsiCo, Inc., No. 16-5506 (E.D.N.Y., filed October 4, 2016). “Consumers are paying higher prices for the healthful and expensive ingredients advertised on Naked labels, such as berries, cherries, kale and other greens, and mango,” said CSPI Litigation Director Maia Kats in an October 4, 2016, press release. “But consumers are predominantly getting apple juice, or in the case of Kale Blazer, orange and apple juice. They’re not getting what they paid for.” The complaint asserts Naked products “predominantly consist of cheaper and less nutritious ingredients like apple juice” and targets the label’s “no…
Castle Cheese Inc. President Michelle Myrter has reportedly been sentenced to three years of probation, 200 hours of community service at a food bank and a $5,000 fine for misdemeanor charges of food adulteration for selling “100% Parmesan” cheese containing high levels of substitutes, including cellulose. Following a federal investigation and a raid on company facilities, Myrter pleaded guilty to the charges in February 2016. Additional details appear in Issue 596 of this Update. See Bloomberg, October 11, 2016. Issue 619
Rapper Snoop Dogg and Pabst Brewing Co. have reportedly reached an agreement to settle a lawsuit disputing a Colt 45® endorsement deal that the rapper argued entitled him to a portion of the proceeds when the brand was sold to Blue Ribbon Intermediate Holdings in 2014. Snoop Dogg’s claims survived Pabst’s motion to dismiss in February 2016 and motion for summary judgment in August 2016. Details about the motion to dismiss appear in Issue 595 of this Update. See The Hollywood Reporter, October 7, 2016. Issue 619
A California federal court has dismissed a lawsuit alleging the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS) allowed the American Egg Board to unduly influence the government’s nutrition advice on dietary cholesterol. Physicians Comm. for Responsible Med. v. Vilsack, No. 16-0069 (N.D. Cal., San Francisco Div., order entered October 12, 2016). Physicians Committee for Responsible Medicine (PCRM) filed the lawsuit following a change to the 2015 Dietary Guidelines that removed the recommended limit of 300 milligrams per day of dietary cholesterol; instead, the guidelines recommended consuming “as little dietary cholesterol as possible while consuming a healthy eating pattern.” PCRM alleged that the advisory body’s analysis and recommendations were compromised by the presence of scientists who had received funding from the American Egg Board or Egg Nutrition Center. The court assessed whether it had subject matter jurisdiction to consider PCRM’s claim by examining the underlying statutes…
The Ninth Circuit Court of Appeals has reversed a grant of summary judgment to Dole Packaged Foods in a lawsuit alleging the company misleads consumers by labeling its packaged fruit products as “all natural” in violation of California consumer-protection statutes. Brazil v. Dole Packaged Foods, No. 12-1831 (9th Cir., order entered September 30, 2016). The appeals court reviewed the evidence before it—including the plaintiff’s testimony that the “all natural” label deceived him, the label itself, Dole’s consumer surveys and U.S. Food and Drug Administration warning letters—and found that “this evidence could allow a trier of fact to conclude that Dole’s description of its products as ‘All Natural Fruit’ is misleading to a reasonable consumer.” Accordingly, the court reversed the grant of summary judgment and remanded the case to the district court. The Ninth Circuit affirmed the district court’s dismissal of claims alleging Dole sold “illegal products.” The plaintiff “seems to be…
A consumer has filed a putative class action against Dave’s Gourmet, Inc. alleging the company deceives its customers by listing evaporated cane juice (ECJ) on its sauce labels rather than the U.S. Food and Drug Administration’s (FDA’s) preferred term, sugar. Kazemi v. Dave’s Gourmet, Inc., No. 16-5269 (N.D. Cal., filed September 14, 2016). The complaint asserts that the plaintiff and other members of the putative class “would have paid less for the Products or would not have purchased the Products had they known that the Products’ listing of ECJ as an ingredient claim was false, misleading, and deceptive.” For alleged violations of California’s and Florida’s consumer-protection statutes, the plaintiff seeks class certification, injunctions, restitution, damages and attorney’s fees. Issue 618
A New York federal court has stayed a proposed class action alleging Kind LLC misleads consumers by describing its products as “all natural” and free of genetically modified organisms. In re Kind, No. 15-2645 (S.D.N.Y., order entered September 15, 2016). The court noted that the U.S. Food and Drug Administration (FDA) requested comments on the use of the term “natural” in food labeling in November 2015 and closed the comment period in May 2016, suggesting that FDA is “prepared to address the core issues in this case.” The plaintiffs voluntarily dismissed their claims that Kind’s use of “healthy” on its labels was misleading following FDA’s determination that it would permit Kind to use the term as the agency considers redefining it. Details on that determination appear in Issue 604 of this Update. Issue 618
The U.S. Environmental Protection Agency (EPA) has announced a settlement with Whole Foods Inc. after a year-long investigation into the company’s hazardous-waste disposal at facilities in five states. According to EPA, the investigation uncovered that Whole Foods did not properly make hazardous waste determinations—as required by the Resource Conservation and Recovery Act—and mishandled spent lamps. Under the settlement terms, Whole Foods will correct the violations, pay $3.5 million and “promote hazardous waste compliance in the retail industry as part of a supplemental environmental project.” That project will aim to educate Texas retailers—”particularly smaller businesses”—about hazardous waste laws and the importance of maintaining compliance. “All companies must follow the law and be responsible stewards of their hazardous waste, from generating it to safely disposing of it,” an EPA administrator was quoted as saying in a September 20, 2016, press release. “Whole Foods is correcting these violations and will ensure their stores…
