Environmental group As You Sow has filed a 60-day notice of intent to sue the manufacturer of Soylent, a food substitute product, for alleged failure to warn that the powder contains lead and cadmium exceeding levels considered safe under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The product at issue is Soylent 1.5, which As You Sow alleges contains 12 to 25 times the safe-harbor level of lead and four times the safe-harbor level of cadmium, according to two samples reportedly tested by an independent laboratory. “These heavy metals accumulate in the body over time and, since Soylent is marketed as a meal replacement, users may be chronically exposed to lead and cadmium concentrations that exceed California’s safe harbor level (for reproductive harm),” As You Sow CEO Andrew Behar said in an August 12, 2015, press release. “With stories about Silicon Valley coders sometimes eating three…
Category Archives Litigation
A California federal court has denied a plaintiff’s attempt to obtain Bigelow’s financial records in a putative class action alleging that the company mislabeled its tea. Khasin v. R.C. Bigelow Inc., No. 12-2204 (N.D. Cal., order entered August 12, 2015). The plaintiff argued that the records would help him calculate what portion of the profits he would seek. The court sided with Bigelow, which argued that “its profits and costs are irrelevant because the proper measure of restitution in a food labeling case is the price premium attributable to the challenged label (the difference between the product as labeled and the product as received), not its profits.” The court then cited a similar decision in another food labeling lawsuit with the same plaintiff. Issue 575
The U.S. Judicial Panel on Multidistrict Litigation has consolidated 11 putative class actions against Kind LLC alleging that its snack bars are misleadingly marketed as “healthy” despite a high saturated fat content and low levels of nutrients. Kind LLC “All Natural” Litigation, MDL No. 2645 (S.D.N.Y., transfer order entered August 7, 2015). The court found that the actions involved common questions of fact, and all parties favored centralization except one plaintiff who did not oppose the motion. The lawsuits were filed after the U.S. Food and Drug Administration sent a letter to Kind warning against the use of “healthy” on several of its products. Details about the first of these lawsuits appear in Issue 562 of this Update. Issue 575
A consumer has filed a putative class action in New York federal court against Tribe Mediterranean Foods alleging that its hummus is not “all natural” because the product contains genetically modified (GM) ingredients, including canola oil and citric acid. Magier v. Tribe Mediterranean Foods, No. 15-5781 (S.D.N.Y., filed July 23, 2015). The complaint asserts that the “all natural” claim on the label precludes Tribe from using any artificial or synthetic ingredients in the hummus, and the plaintiff argues that she paid a higher price for the product believing it to be free of synthetic or GM ingredients. She claims that Tribe violated the Magnuson-Moss Warranty Act and New York consumer protection statutes and further alleges fraud, unjust enrichment and misrepresentation claims. Meanwhile, in New York state court, a group of consumers has reportedly filed a lawsuit alleging that John Wm. Macy Cheese Crisps, Cheese Sticks and Sweet Sticks contain synthetic…
Bumble Bee Foods, Starkist Co. and Thai Union Frozen Products have been fixing tuna prices since 2011, according to a putative class action brought by Olean Wholesale Grocery Cooperative, Inc. Olean Wholesale Grocery Coop. v. Bumble Bee Foods LLC, No. 15-1714 (S.D. Cal., filed August 3, 2015). The complaint notes that while tuna consumption has fallen in the United States, prices have risen, which cannot be explained by raw material costs, the cooperative says. The complaint also details opportunities for the companies to meet and collude, such as industry conferences and various mergers and acquisitions within the “oligopolistic structure” of the industry. For claims of Sherman Act violations, the cooperative seeks to represent a nationwide class of those affected by the alleged price-fixing, court declarations of conspiracy, treble damages and an injunction from continuing any sort of agreement or understanding about maintaining prices. Issue 574
Two consumers have filed a lawsuit against Diageo PLC alleging that Red Stripe® is falsely marketed as Jamaican because it has been brewed and bottled in Latrobe, Pennsylvania, since 2012. Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., filed July 29, 2015). Red Stripe® packaging “boldly states that it is a ‘Jamaican Style Lager’ that contains ‘The Taste of Jamaica,’” and displays the logo of the Jamaican brewery that previously made it, the complaint asserts. “The only clue that Red Stripe is no longer a Jamaican beer is that on the border of the new labels, in obscure white text, the bottle says: ‘Brewed & Bottled by Red Stripe Beer Company Latrobe, PA.’” The plaintiffs argue that the text cannot be seen on packages of 12 bottles of Red Stripe® and is only visible on packages of six if a single bottle is removed and examined. Consumers pay higher prices…
An Illinois federal court has granted summary judgment in favor of Kellogg North America Co. in a lawsuit disputing the patented design of resealable cookie packaging. Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13-0321 (N.D. Ill., order entered August 3, 2015). Intercontinental Great Brands (formerly Kraft Foods Global Brands) sued Kellogg and its affiliates alleging patent infringement, and Kellogg argued that the patent was invalid. Kellogg’s resealable container, which “was designed to ‘circumvent the Kraft patent while maintaining similar properties,’” allows consumers to open a package of cookies then reattach the plastic flap to maintain freshness. Kellogg argued that the patent was invalid because the asserted claims in the patent are obvious, and the court agreed. The standard of obviousness includes considerations of four factors: (i) the scope of prior art, (ii) differences between the prior art and the claim at issue, (iii) the level of ordinary…
An Idaho federal court has invalidated a state law that criminalized undercover investigations at agricultural manufacturing plants, finding that the law criminalized speech in violation of the First Amendment. Animal Legal Def. Fund v. Otter, No. 14-0104 (D. Idaho, order entered August 3, 2015). The 2014 Idaho statute passed after an animal-rights organization publicized a video recorded during an undercover investigation at a dairy. The statute criminalized “interference with agricultural production,” specifically interference by non-employees who obtain access to a facility by trespass or misrepresentation—or employees who obtain employment by misrepresentation—who then create audio or video recordings without the facility owner’s consent or intentionally cause physical damage to facility operations. The Animal Legal Defense Fund challenged the law on First Amendment and Equal Protection grounds soon after it took effect. The court first detailed the legislative history of the bill, noting the intentions of the bill’s drafters—including the “desire to…
The Ninth Circuit Court of Appeals has affirmed a lower court’s ruling dismissing a challenge to California’s law criminalizing the sale or distribution of shark fin. Chinatown Neighborhood Ass’n v. Harris, No. 14-15781 (9th Cir., order entered July 27, 2015). The plaintiffs, two groups representing Asian-Americans who seek to serve shark-fin soup, a traditional Chinese dish, argued that the law violates the Commerce Clause of the U.S. Constitution and is preempted by the Magnuson-Stevens Act. The Ninth Circuit rejected the claims, finding that the lower court did not err in refusing to grant leave to the organizations so that they could fully brief the preemption issue. Further, the shark-fin ban does not violate the Commerce Clause, the court found, because the effects on interstate commerce result from regulation of in-state conduct. Additional details about the groups’ complaint appear in Issue 447 of this Update. Issue 574
A group of consumers has filed a putative class action against Perfetti Van Melle USA alleging that the packaging of its Mentos® sugar-free gum contains non-functional slack fill, which amounts to unfair business practices. Hu v. Perfetti Van Melle USA Inc., No. 15-3742 (E.D.N.Y., filed June 26, 2015). The gum is sold as packages of 50 in non-transparent tubes designed to fit into a car’s cup-holder. The complaint alleges that the height of the tube is unnecessary because it could hold approximately 70 pieces of Mentos® gum—leaving the 50 pieces to fill just 71 percent of the tube’s capacity. The 50-piece product’s packaging was “designed by Defendant to give the impression that there is more content than actually packaged,” the complaint asserts, noting that a 15-piece Mentos® gum product does use transparent packaging. The complaint lists two named plaintiffs, residents of New York and California, along with four John Doe…
