The Ninth Circuit Court of Appeals has ruled that the Animal Legal Defense Fund (ALDF) can sue the U.S. Department of Agriculture (USDA) for its Food Safety and Inspection Service’s denial of a petition for rulemaking on prohibiting force-fed foie gras. Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 13-55868 (9th Cir., order entered December 7, 2015). The district court had dismissed the action sua sponte after determining the denial was equivalent to a non-enforcement decision and thus not reviewable by the court. The appeals court described two exceptions that limit when an individual can challenge a final agency decision in court under the Administrative Procedure Act (APA), finding the district court had erred in determining the foie gras denial fell into one of the exceptions. The court distinguished “agency decisions not to take enforcement actions,” which cannot be subjected to judicial review and involve past breaches of existing…
Category Archives Litigation
The World Trade Organization’s (WTO’s) Appellate Body has affirmed an April 2015 ruling that U.S. tuna regulations discriminate against Mexico by requiring “dolphin-safe” labels reflecting the methods used to catch the fish that protect against capture of the mammal. In response to the appellate ruling, the United States criticized the decision as focusing on points that Mexico had not challenged and were merely “hypothetical” and an “academic exercise.” “Panels and the Appellate Body should not make their conception of the ‘perfect’ measure the enemy of all the possible good ones,” according to the U.S. statement provided during the meeting of the WTO Dispute Settlement Body on December 3, 2015. “In pursuing legitimate objectives, Members should not be held to the impossible standard of designing and applying a measure that corresponds exactly to the one that a panel or the Appellate Body would have designed to achieve the legitimate objective at…
Pepperidge Farm, maker of Milano® cookies, has filed a trademark infringement lawsuit against Trader Joe’s Co. alleging the retailer’s Crispy Cookies emulate the shape and configuration of Milano® cookies. Pepperidge Farm, Inc. v. Trader Joe’s Co., No. 15-1774 (D. Conn., filed December 2, 2015). In addition to the similarity between the cookie products, Pepperidge Farm alleges that the packaging of Crispy Cookies is similar as well. Although Crispy Cookies packaging depicts the cookies in a fluted paper tray—as Milano® cookies are sold—Trader Joe’s actually packages the cookies in a plastic tray inside the external packaging. Pepperidge Farm cites Google search results for “‘Trader Joe’s,’ ‘cookie’ and ‘Milano’” as evidence that consumers have also noted the similarities between the two products. Pepperidge Farm seeks declarations of infringement, permanent injunctions, damages and attorney’s fees. Issue 586
The National Restaurant Association (NRA) has petitioned a New York state court for a declaratory judgment stating that a New York City regulation requiring restaurants to post warnings on menu items high in sodium is arbitrary and capricious as applied. Nat’l Restaurant Assoc. v. New York City Dep’t of Health & Mental Hygiene, No. 654024/2015 (N.Y. Sup. Ct., filed December 3, 2015). The complaint compares the regulation to the city’s 2012 attempt to prohibit sales of soft drinks in cups larger than 16 ounces, alleging that the New York City Board of Health is merely “looking to grab headlines as the purveyor of ‘first in the nation’ health initiatives, notwithstanding that, in truth, its sodium regulation is illogical, unlawful, and more likely to mislead consumers about sodium health than help them.” NRA argues that the regulation, which took effect December 1, 2015, is “riddled with arbitrary exclusions and exemptions that…
The California Supreme Court has held that a consumer may sue Herb Thyme Farms, Inc. alleging its herbs are improperly labeled as “organic,” dismissing the farm’s contention that the Organic Foods Production Act of 1990 blocks such claims. Quesada v. Herb Thyme Farms, Inc., No. S216305 (Cal., order entered December 3, 2015). Details about previous court rulings concluding that the federal law preempted the action appear in Issues 347 and 509 of this Update. The court found that, contrary to the farm’s arguments, the federal statute does not prohibit consumers from seeking redress. “[T]he complaint here alleges Herb Thyme has engaged in fraud by intentionally labeling conventionally grown herbs as organic, thereby pocketing the additional premiums organic produce commands. The purposes and objectives underlying the Organic Foods Act do not suggest such suits are an obstacle; to the contrary, a core reason for the act was to create a clear…
Two consumers have filed a putative class action alleging that two lines of kombucha manufactured by Millennium Products and sold by Whole Foods Market contain several defects, including levels of alcohol higher than the label represents and packaging inadequate to properly accommodate the product’s secondary fermentation. Pedro v. Millennium Prods., Inc., No. 15-5253 (N.D. Cal., filed November 17, 2015). Millennium’s kombucha, a fermented tea product, is sold in two lines—a “Classic” line requiring the purchaser to be 21 years old and an “Enlightened” line containing “a trace amount of alcohol” but insufficient amounts to require identification upon purchase (less than 0.05 percent alcohol by volume). The plaintiffs allege that both lines contain more alcohol than the label indicates, which allegedly caused one plaintiff to become sick and experience “among other things, trouble breathing, and increased heart rate.” The plaintiffs further allege the byproduct of kombucha’s fermentation, carbon dioxide, builds up…
A California federal court has granted a motion to dismiss claims that La Tapatia Tortilleria mislabels its food as containing no trans fats despite containing partially hydrogenated oil (PHO) based on the finding that the plaintiff cannot claim he relied on the product packaging because he is the plaintiff in several similar lawsuits, showing he had sufficient knowledge to determine whether the product contained trans fats before purchasing. Guttmann v. La Tapatia Tortilleria, Inc., No. 15-2042 (N.D. Cal., order entered November 18, 2015). The plaintiff alleged he relied on the “0g Trans Fat” representation on La Tapatia’s tortilla packaging when purchasing, then later learned the product contained trans fat. He, however, “was amply aware, given his litigation history: (1) that products labeled as “0g Trans Fat” may in fact contain small amounts of trans-fat; (2) that FDA regulations do not require trans-fat content to be declared in the nutrition-facts panel…
An Ohio federal court has dismissed fraud and consumer-protection claims against Fifth Dimension, maker of Tito’s Handmade Vodka®, in a putative class action alleging the beverage company misrepresents the process of making its vodka by calling the product “handmade.” Terlesky v. Fifth Dimension, No. 15-0374 (S.D. Ohio, order entered November 17, 2015). The court analyzed each claim, first finding that the plaintiff did not have standing to sue under the Ohio Deceptive Trade Practices Act. Turning to the Ohio Consumer Sales Protection Act, the court determined that plaintiffs bringing class claims must show the alleged violation was declared to be deceptive by the attorney general or a court before the transaction. Finding no such facts in the case, the court dismissed the class claim but allowed the individual claim to proceed. The court also allowed the plaintiff’s promissory estoppel claim to continue. Turning then to the negligent misrepresentation claim, the…
A California federal court has dismissed a proposed class action against Plum Organics alleging that large photos of fruits and vegetables on the company’s Mighty 4® Children’s Food product packaging mislead consumers into believing the products contain significant amounts of those fruits and vegetables. Workman v. Plum Inc., No. 15-2568 (N.D. Cal., filed November 2, 2015). The court refused to find that the mere inclusion of the pictures constituted misrepresentation. “The products at issue do not display any affirmative misrepresentations,” the court said. “They merely show pictures of featured ingredients contained in the puree pouch and fruit bars. No reasonable consumer would expect the size of the flavors pictured on the label to directly correlate with the predominance of the pictured ingredient in the puree blend.” In October 2015, Plum announced it would change its marketing, including product names, to better reflect the contents of its products. Additional information appears…
A California federal court has remanded a putative class action against Gerber Products Co. on the labeling of its Gerber® Graduates® Puffs to state court and declined to admit sales data into evidence on hearsay grounds. Gyorke-Takatri v. Nestle USA, Inc., No. 15-3702 (N.D. Cal., order entered November 6, 2015). The plaintiffs allege Gerber misleads consumers with its Graduates® Puffs marketing by implying the products are healthy with “vibrant images of fruits and vegetables on the outside of the Puffs’ packaging.” Gerber argued that the amount in controversy was more than $5 million and thus sufficient to justify federal court jurisdiction. The plaintiffs argued that the court should not consider the total retail sales of Puffs, which Gerber says is well over the $5 million threshold, because the data Gerber used to reach those numbers was gathered from Nielsen, a third party. The court agreed, finding that the third-party data…
