A putative class action against Melitta USA Inc. alleges the company’s coffee product packaging fails to distinguish between “natural and/or artificial flavor” per federal regulations. Decerbo v. Melitta USA Inc., No. 16-0850 (M.D. Fla., filed April 11, 2016). The plaintiff argues that under U.S. Food and Drug Administration rules, food manufacturers must “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food and its characterizing properties or ingredients,” including whether a characterizing flavor is natural or artificial. However, “‘Hazelnut Crème’ is not flavored with hazelnuts, there is no vanilla in ‘French Vanilla,’ and ‘Pumpkin Spice’ flavor contains neither nutmeg nor cinnamon, or pumpkin or any customary pumpkin spice either, as these Products’ labels would explicitly lead a consumer to conclude,” the complaint argues. The plaintiff further notes that other coffee-product manufacturers “have responsibly decided to correctly label their products,” purportedly giving the…
Category Archives Litigation
A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
“The U.S. Supreme Court recently deviated from its historically stringent view on class certification and affirmed an Eighth Circuit decision to uphold certification of a class of Tyson Foods, Inc. employees who brought suit against Tyson for a violation of the Fair Labor Standards Act of 1938 (FLSA),” Shook Miami attorneys Frank Cruz-Alvarez and Rachel Canfield explain in an April 13, 2016, analysis for the Washington Legal Foundation’s Legal Pulse. The article first describes the suit’s origins; Tyson initially paid all employees for an equal amount of time spent donning and doffing protective gear but later adjusted the policy to pay some employees for additional “don and doff” time. Cruz-Alvarez and Canfield note that “Plaintiffs alleged Tyson’s failure to compensate them for time spent performing this ‘integral and indispensable’ work activity violated the FLSA by lengthening their workweek beyond forty hours without providing them with overtime pay.” They also note…
Consumer group As You Sow has notified the state of California that a number of chocolate manufacturers are allegedly selling chocolate with levels of lead and cadmium that exceed limits set by the state’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Testing by the organization allegedly indicated that 35 of the 50 chocolate products sampled—including those from Trader Joe’s, Whole Foods, Godiva and Lindt, among others—contained enough lead or cadmium to trigger Prop. 65 warning requirements. As You Sow has filed 60-day notices with 18 manufacturers based on its testing; following the 60-day period, the organization may initiate litigation against the companies if public officials have not sought enforcement of the statute. “Lead and cadmium accumulate in the body, so avoiding exposure is important, especially for children,” As You Sow President Danielle Fugere said in a March 23, 2016, press release. “Our goal is to work with chocolate…
A California federal court has granted The Kroger Co.’s motion to dismiss a lawsuit alleging the company’s breadcrumbs product includes partially hydrogenated oil, which contains trans fat, despite labeling the product as “0g Trans Fat.” Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., order entered March 17, 2016). The court found that the mislabeling claims failed for two reasons. First, a challenge to a “0g Trans Fat” labeling claim is preempted, the court said, because U.S. Food and Drug Administration regulations require that foods with less than one-half of a gram of trans fat be labeled as “0g.” Second, the plaintiff failed to prove actual reliance on the allegedly deceptive statements, the court found, rejecting her argument that she “is a busy person and cannot reasonably inspect every ingredient of every food that she purchases” despite having bought the bread crumbs six times per year for 15 years but only noticing…
A Florida federal court has rejected a Florida dairy farmer’s challenge to the state’s standard of identity for skim milk, which dictates that its nutrient content must be the same as that of unfortified whole milk, requiring the addition of vitamin A after processing. Ocheesee Creamery v. Putnam, No. 14-0621 (N.D. Fla., Tallahassee Div., order entered March 30, 2016). The farmer’s company, Ocheesee Creamery, skimmed the cream from milk and sold the leftover product as “skim milk” without fortifying it with vitamin A. Florida inspectors told the dairy farmer she must adjust the nutrient level or label the milk “imitation,” and she filed a lawsuit challenging the rule. Additional details on the case appear in Issue 555 of this Update. The court found that the state standard of identity and its federal counterpart in the federal Food, Drug, and Cosmetic Act “easily pass muster” under the First Amendment test for…
A California federal court has refused to certify a class of consumers alleging that R.C. Bigelow Inc. misled them by over-representing the amount of antioxidants contained in its green tea. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered March 29, 2016). The court previously refused to allow the plaintiff to seek financial records to calculate damages. Additional details appear in Issue 575 of this Update. In its certification analysis, the court found fault with the plaintiff’s three suggested damages models: (i) a restitution calculation, (ii) statutory damages or (iii) a nominal alternative. The plaintiff argued that the restitution calculation model should amount to payments of the full purchase price of the product because the tea is allegedly “legally worthless” for failing to meet U.S. Food and Drug Administration requirements on antioxidant nutrient claims. The court refused to find that consumers received no benefit from drinking the tea, “in…
A Georgia federal court has reportedly ruled that four former executives of Peanut Corp. will not be forced to pay restitution to the victims of a Salmonella outbreak linked to nine deaths and 714 illnesses. The executives—Stewart Parnell, Michael Parnell, Samuel Lightsey and Daniel Kilgore—are each serving federal prison terms for knowingly shipping Salmonella-tainted peanut butter and faking related lab-test results. The court reportedly found that the loss estimates provided by the prosecutors were invalid because they included unrecoverable costs, including attorney’s fees. Further, the victims received more than $12 million from Peanut Corp.’s insurer, and the punitive factor of restitution would be reduced because requiring payment “would ultimately be for naught or close-to-naught,” as the executives received long prison sentences. See Associated Press, April 7, 2016. Issue 599
The U.S. Court of Appeals for the Sixth Circuit has affirmed an Ohio court’s dismissal of multidistrict litigation alleging Anheuser-Busch intentionally overstates the alcohol content on its malt beverages. In re Anheuser-Busch Beer Labeling Mktg. & Sales Prac. Litig., No. 14-3653 (6th Cir., order entered March 22, 2016). The lower court had dismissed the case based on a Federal Alcohol Administration Act (FAAA) rule allowing content variations of up to 0.3 percent under state and federal law, and the appeals court reached the same conclusion in its de novo review. On appeal, the plaintiffs argued the FAAA rule was intended to apply only to unintentional variance, but the court disagreed, finding no evidence that the law sought to prohibit intentional variations within the 0.3 percent tolerance. Issue 599
Food and Water Watch, the Center for Food Safety, Friends of the Earth and other consumer and environmental groups have filed a lawsuit against the U.S. Food and Drug Administration (FDA) arguing the agency approved the use of genetically engineered (GE) salmon AquaBounty for human consumption without properly investigating related environmental risks. Inst. for Fisheries Res. v. Burwell, No. 13-1574 (N.D. Cal., filed March 30, 2016). The complaint alleges that AquaBounty received approval for two facilities only but has told its investors that it will expand in 2016; the organizations assert that FDA should have investigated the environmental effects of AquaBounty’s “necessary outgrowth” rather than limiting its analysis to the effects of two facilities. The complaint further alleges that FDA “failed to consult with the federal fish and wildlife agencies to insure that its approval for AquaBounty’s application was not likely to jeopardize endangered and threatened species or adversely modify…
