Three consumers have filed a putative class action alleging Kombucha 221 B.C. sells kombucha that contains "more than twice the allowed alcohol" for a nonalcohol beverage. Brothers v. Mad at S.A.D. LLC, No. 21-60542 (S.D. Fla., filed March 9, 2021). The plaintiffs, who allege they purchased the kombucha for consumption at work, argue that the kombucha beverages "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcoholic consumption may pose a grave and immediate safety risk." The complaint asserts that the nature of kombucha allows the product to continue fermenting, growing to a higher percentage of alcohol by volume by the time the product is consumed. "While Plaintiffs do not know whether BC Kombucha is below 0.5 alcohol by volume at the moment it leaves Defendant’s distribution center, what is clear is that the beverages are significantly above…
Category Archives Litigation
Philadelphia and three other municipalities have filed a lawsuit challenging Pennsylvania's prohibition of bans on plastic or single-use bags. Philadelphia v. Penn., No. 42 MD 2021 (Penn. Commw. Ct., filed March 3, 2021). "To combat the destructive environmental impact of single use plastic bags, states and cities across the country have enacted laws restricting distribution of single-use plastic bags by retailers," the complaint argues. The plaintiff cities assert that Pennsylvania has prevented them from taking action on limiting plastic bags. "In both 2019 and 2020, the Pennsylvania General Assembly used the annual fiscal code amendment – a must-pass omnibus-style bill that implements the state’s budget – to sneak in a provision prohibiting plastics legislation by Pennsylvania municipalities into state law," they allege. "Petitioners are now indefinitely barred from enacting or enforcing local single-use plastics ordinances. Petitioners Philadelphia, West Chester, and Narberth wish to move forward with enforcement of their ordinances, but…
A California appeals court has declined to revive a lawsuit alleging that packaging for Foster Poultry Farms Inc. products misleads consumers by featuring a certification that the animals are treated humanely. Leining v. Foster Poultry Farms Inc., No. B291600 (Cal. App. Ct., 2nd Dist., entered February 23, 2021). The plaintiff had alleged that she believed the logo to indicate that the animals were treated humanely according to a reasonable consumer's standard rather than according to the industry's standards; the trial court granted Foster Farms summary judgment, finding that the American Humane Association's certification program was "independent, reasonable, and involved some level of expertise." The appeals court found that the plaintiff's causes of action were preempted by the Poultry Products Inspection Act (PPIA) because the labels were preapproved by the Food Safety and Inspection Service. If the plaintiff "were to prevail on her tort claims that the labels were nonetheless misleading,…
A New York federal court has dismissed a lawsuit against Oregon Chai Inc. for failure to state a claim in litigation centered on whether using the term "vanilla" on packaging is misleading to consumers. Cosgrove v. Oregon Chai Inc., No. 19-10686 (S.D.N.Y., entered February 22, 2021). "In the past two years, counsel for Plaintiffs [] has filed numerous class action complaints across the country, including several in this District, challenging food manufacturers’ use of the term 'vanilla' in their descriptions or advertising," the decision begins. "In nearly all of these cases, the district court ultimately found that the plaintiffs had failed to state a viable claim for relief. This time, Plaintiffs challenge Defendant Oregon Chai, Inc. [], claiming that Defendant’s use of the term 'vanilla' and other statements on the packaging of its chai tea latte powdered mix is misleading to consumers. As set forth in the remainder of this Opinion,…
A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.
A plaintiff has filed a putative class action alleging Demoulas Super Markets Inc. includes representations on its Market Basket coffee indicating that the tins hold 76 to 79 cups of coffee but only contain 37 to 39 cups when prepared according to the label's instructions. Cohen v. Demoulas Super Mkts. Inc., No. 21-10177 (D. Mass., filed February 2, 2021). "This means that consumers of the Products, including Plaintiff, were cheated out of 51% of the servings they paid for, in both cases, based on the advertising, marketing, and labeling of the Products," the complaint asserts. The plaintiff alleges claims of unjust enrichment as well as breach of express warranty and untrue and misleading advertising under Massachusetts General Laws.
A New York federal court has dismissed some claims while allowing others to continue in a lawsuit alleging Whole Foods Market Group Inc. misleads consumers by not using graham flour to produce or honey to sweeten its "honey graham crackers." Campbell v. Whole Foods Mkt. Grp. Inc., No. 20-1291 (S.D.N.Y., entered February 2, 2021). The court found that the plaintiff adequately pleaded allegations that "the references to 'honey' and 'graham' on the product’s packaging are likely to lead a reasonable consumer to wrongly believe that these graham crackers contain more whole-grain flour than non-whole grain flour, and that honey is their predominant sweetener," so claims under the New York General Business Obligation Law can continue. The court dismissed a claim of negligent misrepresentation, finding the plaintiff "failed to allege the existence of a special relationship giving rise to a duty to speak on the part of the Defendant." The plaintiff's…
A California federal court has denied a motion to dismiss an advocacy group lawsuit brought against the U.S. Department of Agriculture (USDA) challenging the implementation of the Food Safety and Inspection Service's New Swine Inspection System (NSIS). Ctr. for Food Safety v. Perdue, No. 20-0256 (N.D. Cal., entered February 4, 2021). The plaintiffs, several advocacy groups including the Center for Food Safety and Food & Water Watch, argued that the rule change violated the Administrative Procedure Act. The court found that the plaintiffs could reasonably argue a "credible threat," a standard in threatened environmental harm cases that "also applies to food safety cases such as this one." "Here, Plaintiffs allege that the new NSIS procedures outlined in the Final Rule erode several important features of the traditional inspection process increasing the likelihood that adulterated pork products will enter the food supply and thus putting their members at risk of illness…
California Attorney General Xavier Becerra filed a lawsuit against five importers, wholesalers and distributors of seafood, alleging they sell fish with levels of cadmium and lead high enough to require warnings governed by the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). California v. Pacific Am. Fish Co. Inc. (Cal. Super. Ct., filed December 28, 2020). The companies—Pacific American Fish Company, Rhee Bros., Seaquest Seafood Corporation, Jayone Foods and Clearwater Seafoods—sell products such as clams, mussels, octopus, oysters, squids and snails. “When California's consumers, restaurants, and supermarkets purchase seafood, they shouldn’t have to worry about whether the products they’re buying contain toxic chemicals,” Becerra said in a press release. “The seafood industry has a responsibility to ensure the safety of its products – and to warn consumers of any risks. I hope this lawsuit serves as a warning to any company that might skirt its responsibilities under Proposition 65. The California…
A putative class action has alleged that Subway Restaurants Inc. sells tuna products that "do not contain any tuna nor have any ingredient that constitutes tuna"—the products "are completely bereft of tuna as an ingredient," according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). "As independent testing has repeatedly affirmed, the Products are made from anything but tuna," the complaint asserts. "On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as 'tuna' to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as 'tuna.'" The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs…
