The Environmental Law Foundation has notified more than four dozen food manufacturers and retailers that they are in violation of California’s Proposition 65 Toxics Right to Know law (Prop. 65) after testing purportedly indicated the presence of lead in numerous fruit and fruit juice products. According to the foundation, “apple juice, grape juice, packaged pears and peaches (including baby food), and fruit cocktail” products contained “enough lead in a single serving that they require a warning” under Prop. 65, and the companies, since June 9, 2009, “have exposed and continue to expose consumers of their food products to lead” every day. California’s attorney general, city attorneys and county district attorneys received copies of the notice. The foundation declares in the notices that it intends “to bring suit in the public interest” against the listed companies in 60 days to correct the Prop. 65 violations. A foundation news release indicates that…
Category Archives State Courts
Alleging that her habit of consuming two to three bags of microwave popcorn daily between 1991 and 2007 caused her severe lung disease, a New York resident has sued a host of defendants, including 100 “John Does,” in state court. Mercado v. ConAgra Foods, Inc., No. __ (N.Y. Sup. Ct., Queens Cty., filed May 3, 2010). Agnes Mercado, who claims that her lung disease requires the regular use of an oxygen tank and will likely require a lung transplant, contends that the diactyl in Act II buttered popcorn caused her injury. She sued the product’s manufacturer, flavoring companies and unknown companies that “manufactured, designed, packaged, marketed, labeled and sold added diacetyl to Givaudan for use in its butter flavorings that were sold and distributed to ConAgra for use in ConAgra’s Act II Lite microwave popcorn.” The plaintiff claims that any statutes of limitations have been tolled by defendants’ concealment of information…
A putative class action has reportedly been filed against California’s largest herb grower, shipper and marketer, alleging that the defendant “played California consumers for fools,” by selling as organic, and at higher prices, conventionally grown herbs. Quesada v. HerbThyme Farms, No. __ (Cal. Super. Ct., filed April 2010). According to the complaint, the company owns a large number of conventional farms and just one smaller organic farm, and, when its “profits grew at a slower rate than the company wanted, it turned to fraud.” Seeking restitution, damages and injunctive relief, the plaintiff alleges that the company labeled conventionally grown herbs as “Fresh Organic” in violation of California business and consumer fraud laws. See Courthouse News Service, April 28, 2010.
A group of insurance companies has sued another group of insurers, seeking a declaration that the defendants are also required to indemnify and defend flavoring companies that have been named as defendants in lawsuits by former microwave popcorn- and candy-plant employees alleging injuries from exposure to diacetyl. Arrowood Indem. Co. v. Atl. Mut. Ins. Co., No. 10600881 (N.Y. Sup. Ct., N.Y. County, filed April 7, 2010). While the plaintiffs anticipate that additional diacetyl exposure lawsuits will be filed, they allege that they have been defending, subject to a reservation of rights, seven cases already filed in Illinois, Missouri, Montana, and Ohio. The plaintiffs contend that the defendants have either wrongfully denied any coverage obligations or refused to respond to requests for contribution to the litigation defense or indemnity costs. Seeking declaratory relief, the plaintiffs also ask for damages, attorney’s fees, interest, and costs.
Old Republic Insurance Co. has filed a lawsuit in a New York state court, seeking a declaration that it is entitled to reimbursement for the costs it has incurred defending a company that distributed diacetyl and has been sued with other companies for personal injuries allegedly sustained from exposure to the butter-flavored chemical. Old Republic Ins. Co. v. The Travelers Indemnity Co., No. 10103533 (N.Y. Sup. Ct., filed March 18, 2010). According to the complaint, some 21 active lawsuits are currently pending against Old Republic’s insured, Citrus & Allied Essence, Ltd. The carrier claims that it has successfully defended the company for three years at a cost of more than $1 million in cases where other carriers, including one that is now insolvent, share coverage and defense responsibilities.
A putative class action has been filed in a Washington state court by plaintiffs claiming that L’il Critters Omega-3 Gummy Fish® are deceptively marketed as products that will “Promote Healthy Brain Function” in children. Aust v. NW Natural Prods., Inc., No. 10-07949 (Wash. Super. Ct., King Cty., filed February 23, 2010). In fall 2009, the Federal Trade Commission (FTC) warned the defendant that its claims may violate federal false advertising laws, and the company modified its marketing materials. Additional information about the FTC’s actions on products with omega-3 related claims appears in issue 338 of this Update. Seeking to represent a class of all Washington residents who have purchased the company’s omega-3 gummy fish products, the plaintiffs allege violations of Washington’s consumer protection act, breach of warranties, conversion and unjust enrichment. They seek a class certification order, a declaration that the company’s conduct was unlawful, actual damages, statutory damages including treble…
According to a news source, a putative class action has been filed against E&J Gallo Winery alleging that it falsely labeled and sold its Red Bicyclette® wine as Pinot Noir when the wine was “illegally cut with cheaper Syrah and Merlot grapes.” The action, reportedly filed in Los Angeles Superior Court, follows news that wine makers in France were sentenced for selling the cheaper wine to the company as pinot noir. Additional details about the French scam appear in issue 338 of this Update. Meanwhile, the U.S. Alcohol and Tobacco Tax and Trade Bureau (TTB) has reportedly been investigating the matter with French authorities and may also take action against U.S. wine importers. The bureau was quoted as saying, “TTB is waiting for an official translation of the court documents and has begun investigations to determine the appropriate course of action to take regarding the American importers of these mislabeled…
A putative class action has been filed in a Madison County, Illinois, court alleging that a fast food chain has fraudulently advertised its Super Stacked™ sub sandwiches “as containing ‘double portions of meat’” compared with its standard sandwiches, when they do not have double the meat. Williams v. Kahala Corp., No. 10-L-166 (Ill. Cir. Ct., Madison Cty., filed February 12, 2010). According to the complaint, while defendant charges a premium for its Super Stacked™ sandwiches, they “do not have double the protein” because “they do not have double the meat.” The plaintiffs allege that a 12-inch BLIMPIE Best™ sandwich has 50 grams of protein, while its Super Stacked™ counterpart “contains only 73 grams of protein.” They also allege that some Super Stacked™ sandwiches have no “regular” counterpart with which consumers can compare. Seeking to certify a class of all persons who purchased a Super Stacked™ sandwich from Blimpie restaurants in…
Francis Ford Coppola Presents, LLC has filed a complaint in a California court against a company that makes corks, screw caps, bottles, and other packaging, alleging that defects in the bottles and screw caps purchased for the winery’s Encyclopedia® collection of wines caused the degradation or destruction of 55,000 cases of wine. Francis Ford Coppola Presents, LLC v. Vinocor USA, Inc., No. 26-50585 (Cal. Super. Ct., Napa Cty., filed November 23, 2009). The winery alleges breach of contract, the implied covenant of good faith and fair dealing and the implied warranty of fitness; fraud in the inducement; negligent misrepresentation; negligence; and “for money had and received.” According to the complaint, the affected wine collection “was crafted and designed to be a collection of wines aimed at educating consumers on understanding how geography, history, food and religion, to name a few, all contribute to the making and enjoyment of wine. In…
Plaintiffs’ lawyer William Marler has apparently filed a second lawsuit against New York-based Fairbank Farms for injury allegedly caused by consumption of E. coli-tainted ground beef. According to Marler, the suit has been filed in a Maine state court on behalf of a woman who was hospitalized for six days after consuming meat produced by Fairbank Farms. Her cultures allegedly tested positive for the same E. coli strain found in the company’s recalled meat. See Food Poison Journal, November 17, 2009. Meanwhile, Representative Rosa DeLauro (D-Conn.) has called on the U.S. Department of Agriculture’s Office of Inspector General to investigate the method that meat processors and the agency use to verify that ground beef is free of the bacterium. In her November 12 letter, DeLauro discusses the Fairbank Farms outbreak and notes that the company’s facility sampled its products every 10 to 20 minutes. She states, “However, despite these precautions, it…
