Several consumer organizations, including the Center for Food Safety, Environmental Working Group and Natural Resources Defense Council, have filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Ninth Circuit seeking a writ compelling the U.S. Food and Drug Administration (FDA) to address the groups’ administrative petition filed in December 2014. Breast Cancer Fund v. FDA, No. 16-70878 (9th Cir., petition filed March 31, 2016). FDA missed a June 2015 deadline to respond to the groups’ petition, which implored FDA to rescind foodcontact approval for perchlorate, “an endocrine-disrupting chemical that interferes with the thyroid gland” used in food packaging. “Perchlorate is primarily used in rocket fuel. There is no reason FDA should allow a chemical like this in or on food products,” Andrew Kimbrell, executive director of Center for Food Safety, said in a March 31, 2016, press release. “It is irresponsible, illegal, and…
Category Archives Litigation
The EU General Court has confirmed a European Commission decision finding that German company Dextro Energy's health claims for its glucose supplements are contrary to the messages of national and international authorities on the health risks associated with sugar consumption. The commission decided the issue in January 2015 despite advice from the European Food Safety Authority suggesting that the consumption of glucose could be linked to normal energy-yielding metabolism. "Even if those health claims were to be authorised only subject to specific conditions of use and/or were accompanied by additional messages or warnings, the Commission considered that the message nevertheless remained confusing for consumers, with the result that the claims in question should not be authorised," stated a March 16, 2016, press release from the General Court summarizing the opinion. Issue 598
A Connecticut federal court has reportedly approved the dismissal of Pepperidge Farm's lawsuit against Trader Joe's Co. alleging the grocery infringed Pepperidge Farm's trademarked Milano® cookies. Pepperidge Farm v. Trader Joe's Co., No. 15-1774 (D. Conn., order entered March 9, 2016). The lawsuit challenged Trader Joe's Crispy Cookies, which Pepperidge Farm asserted were the same shape and sold in similar packaging to Milano® cookies. The order is the first legal filing in the case since the lawsuit was filed in December 2015; an attorney for Pepperidge Farm told Law360 that the parties had reached a "mutually satisfactory resolution." Additional information about the complaint appears in Issue 586 of this Update. See Law360, March 10, 2016. Issue 598
A consumer has filed a lawsuit alleging that Chipotle Mexican Grill Inc. falsely advertised its food as free of genetically modified organisms (GMOs) despite serving meat products from animals fed GMOs and soft drinks that contain GMO corn syrup. Pappas v. Chipotle Mexican Grill, Inc., No. 16-0612 (S.D. Cal., filed March 10, 2016). The plaintiff alleges violations of California's consumer-protection law and seeks class certification, damages, an injunction, and attorney's fees. The complaint echoes the arguments in a similar California case dismissed without prejudice in February 2016 finding that the plaintiff's definition of GMO was inconsistent. The plaintiff has filed an amended complaint arguing that consumers "reasonably understand today that such claims would mean that Chipotle's menu is 100% free of GMOs and that Chipotle does not serve food sourced from animals that have been raised on GMOs or genetically engineered food." Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952…
A New York state appellate court has affirmed a lower court’s ruling dismissing a lawsuit against a local Fox TV station that investigated and reported on the allegedly false health claims of D’Lites ice cream in two stores. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. App. Div., 1st Dept., order entered March 8, 2016). The eight-minute “Shame Shame Shame” report informed viewers that the nutritional information advertised for a small serving did not correlate to the nutritional information of the ice cream served by two New Jersey stores; the owner of a D’Lites store—not one involved in the report—sued the station for libel. A lower court then dismissed the lawsuit; details appear in Issue 524 of this Update. “To the extent that there were purported discrepancies in the measurements of sugar and carbohydrates in the test results of the samples sold in stores, plaintiff does not dispute that…
A woman has filed a lawsuit alleging Dole Fresh Vegetables, Inc. sold salad mixes contaminated with Listeria. Georgostathis v. Dole Fresh Vegetables, Inc., No. 16-0360 (S.D. Ohio, filed March 7, 2016). The woman asserts that after her mother ate the salad mix, she became infected with Listeria and felt extreme head and neck pain that ultimately caused her to become comatose. The complaint argues that the strain of Listeria in the plaintiff’s salad mix is “indistinguishable from the strain involved in the recent Listeria outbreak linked to Dole salad products produced at the Springfield, Ohio processing facility.” The outbreak has reportedly sickened nearly 30 people in the United States and Canada who were all hospitalized as a result of contracting Listeria. The plaintiff, who is represented by foodborne-illness attorney Bill Marler, seeks damages and attorney’s fees for allegations of negligence, product liability and violations of Ohio consumer-protection law and the…
Great Harvest Franchising, Inc. and two franchisees of Great Harvest Bread Co. have filed a lawsuit against Panera Bread Co., alleging the company has been using a tagline—“Food as it should be”—that infringes on Great Harvest’s trademarked slogan, “Bread. The way it ought to be.” Great Harvest Franchising, Inc. v. Panera Bread Co., No. 16-0121 (W.D.N.C., Charlotte Div., filed March 10, 2016). Great Harvest established its tagline in October 2014 and registered the mark in December 2015, and it alleges that Panera began using its similar slogan in July 2015. The plaintiffs seek an injunction, destruction of infringing materials and damages for allegations of unfair competition, trademark infringement and false designation of origin. Issue 597
A California federal court has dismissed a proposed class action against Nestlé USA, Inc. alleging that its Coffee-Mate creamer products are mislabeled because they include partially hydrogenated oil (PHO), which contains trans fat, despite listing “0g Trans Fat” on its labels. Backus v. Nestlé USA, Inc., No. 15-1963 (N.D. Cal., order entered March 8, 2016). The court first agreed with Nestlé’s argument that the plaintiff’s three use claims—those arguing that the company’s use of PHO makes it liable for damages to consumers—were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and the U.S. Food and Drug Administration’s (FDA’s) compliance schedule for removing trans fat from food by June 18, 2018. The court then turned to the labeling claims, which Nestlé also argued were preempted by the FDCA, as amended by the Nutrition Labeling and Education Act, which established that a company must list the trans fat content of…
A California federal court has again denied certification in a putative consumer class action challenging Yakult USA’s probiotic yogurt product for allegedly false digestive-health claims. Torrent v. Yakult USA, Inc., No. 15-0124 (C.D. Cal., S. Div., order entered March 7, 2016). Additional information about the previous denial of certification appears in Issue 589 of this Update. In its prior denial, the court found the plaintiff was unlikely to purchase the product again, thus he lacked standing to pursue an injunction. Following this ruling, the plaintiff purchased Yakult at a store, then refiled his motion for class certification along with a sworn declaration that “I intend to buy Yakult in California in the future.” The court found the refiled motion to be “an effort to manufacture standing in direct response to this Court’s prior ruling.” Allowing the plaintiff “to seek injunctive relief based on his recently-expressed intention to purchase Yakult in the…
The Supreme Court of Spain has reportedly dismissed a challenge brought by the Comité Interprofessionel Du Vin de Champagne alleging that Champín, a Spanish fruit-flavored soft drink, infringes the organization’s protected-designation-of-origin rights. The organization asserted that Champín could be confused with Champagne, which may only describe sparkling wines made in that region. The court disagreed, finding that “Champín differs enough with respect to those products protected by the Champagne appellation that the phonetic similarity does not evoke the product.” See The Local, March 10, 2016. Issue 597
