The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
Category Archives Litigation
A consumer has filed a putative class action against Kimlan Foods U.S.A. alleging the company misrepresents its jarred preserved-food products as having “No Preservatives Added” despite containing citric acid. Hu v. Golden Orchid, Ltd., No. 16-2234 (E.D.N.Y., filed May 4, 2016). The plaintiff purchased a 14-ounce jar of pickled cucumbers at a supermarket in New York, allegedly relying on the “No Preservatives” claims when choosing the product, then later discovered that citric acid is “a non-natural, highly chemically processed ingredient regularly used as a preservative (due to its acidic pH level which creates an environment where bacteria cannot thrive) in ready-to-drink tea products.” The complaint further argues that although “the acidic pH of citric acid would most certainly provide tartness to the Products, such explanation is pretextual because the real function of the citric acid in the Products is as a preservative.” For alleged violations of New York consumer-protection laws, negligent…
Salvatore Ferragamo S.p.A. has filed a lawsuit against Ferragamo Winery and Vince Ferragamo, a former Los Angeles Rams and Green Bay Packers quarterback, for trademark infringement and dilution of the “Ferragamo” mark. Salvatore Ferragamo S.P.A. v. Ferragamo Winery, No. 16-3313 (S.D.N.Y., filed May 4, 2016). The fashion company asserts that it owns two trademarks to “Ferragamo” for use in connection with wine, which it produces at a Tuscan estate. The former football player owns and operates Ferragamo Winery in California, and the complaint argues that he and his company have ignored repeated cease-and-desist demands. Salvatore Ferragamo alleges federal trademark infringement, cybersquatting, trade dress infringement, trademark dilution and unfair competition claims, and it seeks damages, an injunction preventing further use of “Ferragamo” in regard to wine production and an order directing the winery to destroy infringing products. Issue 603
A consumer has filed a putative class action against The Quaker Oats Co. alleging the company falsely advertises its oatmeal products as “100% natural” because it contains the herbicide glyphosate. Cooper v. Quaker Oats Co., No. 16-2364 (N.D. Cal., San Francisco Div., filed April 29, 2016). The plaintiff argues the cancer-research arm of the World Health Organization declared glyphosate—”a potent and unnatural biocide” that the company sprays on oats as a drying agent, according to the complaint—to be a “probable human carcinogen” in 2015. The complaint admits the use of glyphosate is legal but asserts that its use in combination with a “100% natural” claim amounts to misrepresentation. For allegations of breach of warranty and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, a compelled corrective advertising campaign, damages, restitution and attorney’s fees. Issue 603
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
Following a Listeria outbreak allegedly linked to a Dole Food Co. salad manufacturing plant, the company is reportedly facing investigations by the U.S. Department of Justice (DOJ) and Food and Drug Administration (FDA). Several media outlets have reported that an FDA investigation obtained through a Freedom of Information Act request found Dole knew of nine positive tests for Listeria at the plant taken as early as July 2014, more than a year before the company closed the plant. See The Wall Street Journal, April 29, 2016. In response, Dole issued an April 29 statement expressing concerns “about the recent stories in some publications about the FDA’s observation reports. Those FDA reports deal with issues at our plant that we have corrected. We have been working in collaboration with the FDA and other authorities to implement ongoing improved testing, sanitation and procedure enhancements, which have resulted in the recent reopening of…
The U.S. Supreme Court has denied certiorari in a Federal Trade Commission (FTC) lawsuit against POM Wonderful LLC and Roll Global LLC alleging the companies made false or misleading health claims about their pomegranate-derived products. POM Wonderful LLC v. FTC, No. 15-525 (U.S., certiorari denied May 2, 2016). The U.S. Court of Appeals for the District of Columbia previously upheld a Commission decision finding POM misled consumers by claiming its products treat, prevent or reduce the risk of heart disease and prostate cancer, with some claims purported to be supported by clinical studies. “I am pleased that the POM Wonderful case has been brought to a successful conclusion,” FTC Chair Edith Ramirez said in a May 2, 2016, press release. “The outcome of this case makes clear that companies like POM making serious health claims about food and nutritional supplement products must have rigorous scientific evidence to back them up.…
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
Two consumers have filed a putative class action against Panera LLC involving the restaurant chain’s “2.0” ordering system using touchscreen kiosks and a “fast lane” pick-up shelf, which they allege fails to accommodate the visually impaired. Gomez v. Panera LLC, No. 16-21421 (S.D. Fla., filed April 20, 2016). The plaintiffs argue that they each visited a Florida location of Panera and found themselves “unable to enjoy the same ordering and dining experience as sighted patrons” because they were “denied the ability to independently select and purchase lunch.” The kiosks “were not designed and programmed to interface with commercially available screen reader software and further were not equipped with auxiliary aids (such as an audio interface system) for disabled individuals who are visually impaired,” the complaint alleges. The plaintiffs further argue that Panera’s website is unusable to them because it does not integrate with their screen reader programs. They seek orders…
A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
