Two residents of Berkeley, California, have filed a lawsuit in state court alleging that the proposed 1-cent-per-ounce soda tax, which will appear on the ballot in November, uses “politically charged” language and affects beverages beyond the targeted “high-calorie, sugary drinks.” Johnson v. Numainville, No. RG14786763 (Cal. Super. Ct., Alameda Cty., filed August 13, 2014). The complaint accuses the city council of failing to define the term “high calorie, sugary drink,” and suggests “sugar-sweetened beverage” instead. The plaintiffs also argue that the tax would apply to “any beverage intended for human consumption to which one or more added caloric sweeteners has been added and that contains at least 2 calories per fluid ounce,” despite that under U.S. Food and Drug Administration guidelines, a 12-ounce, 24 calorie drink would actually be considered low calorie. They request that the court order the city council to insert their suggested phrases for the allegedly biased…
Category Archives State Courts
A California appeals court has determined that the state Labor Code requires employers to reimburse employees who “must use their personal cell phones for work-related calls”; so ruling, the court reversed a class-certification denial and ordered the lower court to reconsider the motion in light of this interpretation of the law. Cochran v. Schwan’s Home Serv., Inc., No. B247160 (Cal. Ct. App., decided August 12, 2014). The trial court denied certification due to lack of commonality and because a class action was not a superior method to litigate the claims. In its view, if an employee did not pay the cell phone charges because someone else did or the employee purchased a different cell phone plan that accommodated the calls, individual inquiries into the plans and payments would be necessary to determine liability. According to the appeals court, the issue in the case is whether an employer must always “reimburse…
Echoing a putative class action filed in Massachusetts federal court on August 1, 2014, a plaintiff has filed a lawsuit against Whole Foods Market in Pennsylvania state court accusing the retailer of mislabeling its 365 Everyday Value yogurt’s sugar content as 2 grams despite containing 11.4 grams, according to test results published in the July issue of Consumer Reports. Clemente v. Whole Foods Market Inc., No. 140801271 (Ct. of C.P. of Pa., Philadelphia Cty., filed August 11, 2014). The plaintiffs accuse Whole Foods of knowingly mislabeling its yogurt, citing a statement on the Whole Foods website that allegedly reads, “Our Private Label registered dietician reviews each nutrition label for accuracy and completeness before the label is printed. All attempts are made to review nutrition labels on a regular basis to ensure accuracy.” In the complaint, the plaintiffs argue, “Unless this statement on Defendant’s website is false, then Whole Foods Market was…
A plaintiff has accused cereal company Organic Milling of mislabeling its Nutritious Living Hi-Lo brand cereals as “100% natural” despite allegedly containing synthetic and heavily processed ingredients and being produced with genetically modified (GM) crops. Mirto v. Organic Milling, No. BC553780 (Super. Ct. Cal., Los Angeles Cty., filed Aug. 5, 2014). The complaint alleges first that the use of GM crops in the cereal’s production precludes the company from using the phrase “100% natural” on its marketing materials, citing definitions from the World Health Organization and Environmental Protection Agency to argue that “GM crops are not ‘natural,’ and products made from these crops, including [Organic Milling’s products], are not ‘100% natural.’” The complaint further argues that Organic Milling’s use of canola oil in Hi-Lo cereal is not “100% natural” either because of the heavy processing required to produce the oil. The plaintiff also objects to the use of emulsifier soy…
According to a putative class action removed to Arkansas federal court, Whole Foods mislabels several of its 365 Everyday Value brand products as “organic” or “all natural” despite containing synthetic ingredients. Stafford v. Whole Foods Market Cal., No. 14-420 (E.D. Ark., removed July 22, 2014). Originally filed in Arkansas state court in June, the complaint accuses several products of mislabeling—for example, the plaintiff says, the 365 Everyday Value soft drink contains carbon dioxide, citric acid, tartaric acid, and caramel coloring despite its “all natural” label. Whole Foods argued to the state court that the potential class contains more than 100 people who seek over $5 million in damages, so the case was removed to federal court. Alleging that Whole Foods violated Arkansas labeling laws and breached warranties, the plaintiff seeks class certification, damages and interest. A similar case filed in New Jersey state court alleges that Breyers, a subsidiary of Unilever…
Tufts University Senior Research Scientist Guangwen Tang has reportedly accused the American Society for Nutrition (ASN) of defaming her with its plan to retract her 2012 article—“β-carotene in Golden Rice is as good as p-carotene in oil at providing vitamin A to children”—for allegedly prob- lematic research protocols. Filing in Middlesex County Court, Tang has also accused Tufts of interference in business relations because, she argues, the university barred her from doing human research for two years and told her she would be subject to disciplinary actions regarding future research and would be required to undergo human subject training—actions that Tufts disclosed to ASN and led to the organization’s decision to retract her article, she claims. Tang’s studies examined the effects of golden rice, genetically engineered rice enriched with β-carotene, in China through a 2008 field trial that involved feeding the rice to Chinese children. Chinese media reports and Greenpeace…
The state attorneys general (AGs) of Oregon, Vermont and Washington have reportedly filed separate lawsuits against Living Essentials and its parent Innovation Ventures seeking a permanent injunction to stop allegedly misleading and deceptive advertising for 5-hour ENERGY®. According to news sources, other state AGs are expected to bring similar action; some 30 have been investigating the accuracy of company ads for the product. Washington AG Bob Ferguson has alleged that the defendants violated the state consumer protection statute by (i) airing TV commercials with “survey results” from doctors who “recommend” the product “while misrepresenting survey results and failing to disclose key facts”; (ii) using a misleading “no sugar crash” product tagline given studies demonstrating a caffeine crash; (iii) implying that the product can be consumed by teens with the label statement, “Do not take if you are pregnant or nursing, or under 12 years of age”; and (iv) claiming that the…
A Hawaii state court has reportedly ordered Hawaii County not to publicly disclose the identity and specific location of farms that grow genetically modified (GM) papayas. While the order apparently allows the county to maintain registration information under a December 2013 law that also prohibited open-air use and testing of GM crops, the court agreed with two GM papaya growers that the registration program lacked clear rules as to information that could be released to the public. According to a news source, the growers are concerned about vandalism or other economic harms. The court’s preliminary injunction states that releasing information about specific farm locations would not “protect farmers of nongenetically engineered crops” due to a “limited” cross-pollination risk and because GM papayas are not prohibited. A Kohala councilwoman reportedly expressed satisfaction with the ruling and contended that the general location of farms could still be made public under the injunction.…
Environmental groups have brought actions in state court and before the U.S. Environmental Protection Agency (EPA) seeking action to halt the use of certain insecticides that they claim are linked to the collapse of bee colonies. In California, Pesticide Action Network North America and other groups call on the state Department of Pesticide Registration to “stop approving neonicotinoid pesticides pending its completion of a comprehensive scientific review of impact to honeybees.” Pesticide Action Network N. Am. v. Cal. Dep’t of Pesticide Regulation, No. RG14731906 (Cal. Super. Ct., Alameda Cty., filed July 8, 2014). They specifically challenge the department’s June 13, 2014, decision to expand the use of two neonicotinoid insecticides while its scientific review, begun in 2009, remains pending. Claiming violations of the California Environmental Quality Act and Food and Agricultural Code, the organizations seek a stay of the decision or a writ of mandate directing the department to vacate the decision,…
Following a year-long investigation of Whole Foods Markets in California, state and county weights and measures inspectors found that it was charging more than advertised for a wide variety of food items; the company has reportedly agreed to pay nearly $800,000 in penalties and to conduct its business for the next five years under strict oversight. According to the Santa Monica City Attorney’s Office, Whole Foods (i) failed to account for the weight of containers when charging for self-serve foods at the salad and hot bars, (ii) labeled foods sold by pound with higher weights than actually contained in the package, and (iii) sold items by the piece that should have been sold by the pound. Retailers bound by the judgment include those operated by Whole Foods Market California, Inc. and Mrs. Gooch’s Natural Foods Markets, Inc. The company has also agreed to appoint two “state coordinators” who will oversee…
