A consumer has filed a putative class action against Kraft Foods Group Inc. alleging that the company’s fat-free cheese is mislabeled as “natural” because it contains artificial or synthetic ingredients, including “artificial color.” Quiñones-Gonzalez v. Kraft Foods Grp., Inc., No. 15-1892 (D.P.R., filed July 27, 2015). The plaintiff asserts that she relied on the “natural” label to mean that the product, “at a minimum, has no artificial ingredients or characteristics. The public is further led to believe the Product will be healthier, safer and/or produced to a higher standard.” She seeks class certification, an injunction, restitution and damages for allegations of deceptive and unfair marketing and unjust enrichment. A class was certified in June 2015 in a similar lawsuit pending in California federal court; details about the ruling appear in Issue 570 of this Update. Issue 573
Category Archives Litigation
The American Beverage Association (ABA) has partnered with California retail and advertising associations to challenge San Francisco ordinances requiring warning labels on sugar-sweetened beverage (SSB) advertisements and prohibiting advertisements of such products on city property. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., filed July 24, 2015). ABA argues that the ordinances violate the First Amendment, which “forbids the City from conscripting private speakers to convey [the city’s viewpoint] while suppressing conflicting viewpoints on this controversial topic.” The complaint first details ad prohibition on city property, including transportation and parks, while it “explicitly permits advertisements that criticize sugar-sweetened beverages or encourage people to stop drinking them. The First Amendment flatly forbids such government-imposed viewpoint discrimination.” The second component of the ordinance prohibits all producers of SSBs “from using their names on any City property to promote any product or any non-charitable event, no matter whether commercial, athletic, musical,…
A California federal court has dismissed claims challenging the trans fats labeling of Nissin Foods Co. Inc.’s Cup Noodles® but allowed to continue allegations that the use of partially hydrogenated oil (PHO) violates California law. Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. 15-0567 (N.D. Cal., order entered July 15, 2015). The plaintiff challenged the Cup Noodles label, which indicated that the product contained “Trans Fat: 0g,” despite including PHO among its ingredients. Nissin argued that the U.S. Food and Drug Administration (FDA) dictates that the nutritional panel lists an ingredient as zero grams if its actual content is less than one-half of a gram, and Nissin’s compliance with that mandate could not create misleading labels. The court looked to a 2010 case with the same plaintiff challenging Quaker Oats Co.’s label on similar grounds. According to the court, the decision in that case determined that “if the FDA had…
A California federal court has dismissed a putative class action against Maker’s Mark Distillery, Inc. alleging that its whiskey is mislabeled as “handmade” because it uses machines to produce the product. Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., order entered July 27, 2015). Additional information about the complaint appears in Issue 548 of this Update. The court first denied the distillery’s motion to dismiss on safe harbor grounds, finding that the record is unclear as to whether “handmade” claims fall within the purview of the Tobacco Tax and Trade Bureau. The decision then turned to whether the public would likely be deceived by the “handmade” label. Maker’s Mark cited a May 2015 decision in a similar lawsuit finding that a reasonable person would understand that “handmade” is not meant to indicate that substantial equipment was not used in production, and the court found the reasoning persuasive. “This…
A consumer has filed a putative class action against Foster Poultry Farms, Inc. alleging that the company’s label misleads by displaying an American Humane Association (AHA) certification logo because that certification does not indicate a higher, more humane standard for raising chickens. Leining v. Foster Poultry Farms, Inc., No. BC588044 (Cal. Super. Ct., filed July 13, 2015). The complaint asserts that Foster Farms markets itself as a humane producer of chicken products and charges higher prices accordingly. The plaintiff believed that this marketing message communicated that the chickens at Foster Farms “lived a life without disease and discomfort and were afforded a quick and painless death.” She argues, however, “the AHA certification standards permit practices throughout all phases of the production process that, if known, would not be considered humane either by the reasonable consumer or even under the AHA’s own definition of humane meat production.” The complaint details each of…
A consumer has filed a putative class action against Kraft Foods Group, Inc. alleging that the company’s Knudsen Hampshire Sour Cream is labeled as containing 60 calories with 3.5 grams of saturated fat per halfcup while the actual content is 240 calories with 14 grams of saturated fat. Appel v. Kraft Foods Grp., Inc., No. BC587662 (Cal. Super. Ct., Los Angeles Cty., filed July 9, 2015). The plaintiff further alleges that the listed sodium content of 10 milligrams and sugar content of one gram is incorrect because the sour cream actually contains 40 milligrams of sodium and four grams of sugar. The complaint does not provide the source of the plaintiff’s quadrupled figures. He alleges that Kraft has violated California consumer-protection statutes and seeks class certification, compensatory and punitive damages, restitution, an injunction, and attorney’s fees. Issue 572
An Iowa federal jury has found William Aossey , the former owner of Midamar Corp., guilty of making false export statements along with conspiracy and wire fraud stemming from the company’s misrepresenta- tion of the source of food exported to Malaysia and Indonesia. U.S. v. Aossey, No. 14-0116 (N.D. Iowa, jury verdict entered July 13, 2015). Aossey was indicted over claims that Midamar bought products from a slaughterhouse not certified to export meat to Indonesia and Malaysia, then removed the facility’s federal establishment number with nail-polish remover and replaced it with the number of a certified facility. Additional charges alleging that the company’s products do not meet halal standards are pending against Aossey’s sons. Issue 572
A California federal court has denied Gerber Products Co.’s attempt to dismiss a false advertising lawsuit about the company’s Good Start® Gentle based on the reasoning in a June 2015 Fourth Circuit decision that significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200 (C.D. Cal., order entered July 14, 2015). The June decision found that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order entered June 19, 2015). After the court denied its motion to dismiss on June 18, Gerber filed for reconsideration, arguing that In re GNC “has changed the law of false advertising.” The court, noting that the Fourth Circuit decision was not binding…
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
Six consumers have filed a lawsuit against Foster Poultry Farms alleging that the company knowingly sold chicken tainted with Salmonella that sickened the plaintiffs with salmonellosis syndrome. Melendez v. Foster Poultry Farms, No. BC586891 (Cal. Super. Ct., Los Angeles Cty., filed July 2, 2015). The complaint asserts that Foster Farms refused to issue a recall after it knew of a link between its products and incidents of Salmonella infections. Foster Farms “begrudgingly initiated a very limited recall of its tainted chicken on July 12, 2014,” the plaintiffs argue, only after the investigators tested a Foster Farms product from a sickened consumer’s home and it tested positive for the outbreak strain of Salmonella. The complaint further alleges that Foster Farms promoted the growth of the bacteria by failing to meet operational and food safety standards in the months before the outbreak. The plaintiffs allege strict product liability, negligence and breach of…
