An Ohio appeals court has affirmed a lower court decision finding that two consumers’ mislabeling allegations against The Kroger Co. are preempted by the Poultry Products Inspection Act (PPIA). Arnold v. Kroger Co., No. C-150291 (Ohio Ct. App., 1st App. D., Hamilton Cty., order entered January 22, 2016). The consumers alleged Kroger’s chickens were not subjected to “a humane environment” as the company advertised and thus were not worth the premium the store charged. The trial court dismissed the claims as preempted by the PPIA, and the plaintiffs appealed. The appeals court was unpersuaded by the plaintiffs’ argument that the Food Safety and Inspection Service’s (FSIS’) inspection and approval of Kroger’s slaughtered chickens were insufficient to determine whether the chickens were in a humane environment while alive. “FSIS has determined that humane treatment of poultry directly implicates its fitness for human consumption because ‘under the PPIA, poultry products are more…
Category Archives State Courts
A consumer has filed a putative class action against Quorn Foods, Inc. alleging the term “mycoprotein,” which the company uses in its advertising, implies the product is “the same or substantially similar to a mushroom, truffle or morel” but Quorn products “are actually made of mold.” Birbrower v. Quorn Foods, Inc., No. 608107 (Cal. Super. Ct., Los Angeles Cty., C. Dist., complaint filed January 22, 2016). The complaint argues that Quorn labels misrepresent “mycoprotein,” specifically citing the packaging claim that “Quorn [products] are made with mycoprotein (‘myco’ is Greek for ‘fungi’) and are completely meatless and soy-free. There are believed to be over 600,000 varieties of fungi in the world, many of which are among the most sought after foods like varieties of mushroom, truffles, and morels.” The plaintiff alleges violations of California consumer-protection statutes and fraud, and she seeks an injunction, implementation of product labels that state that “this…
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…
New York City has appealed a trial court decision overturning a determination that expanded polystyrene foam (EPS) cannot be recycled, which had resulted in a municipal ban on the material. In re Restaurant Action Alliance, NYC, No. 100734 (N.Y. App. Ct., filed October 26, 2015). The appeal argues that the commissioner of the Department of Sanitation of New York conducted an extensive review over six months before reaching the determination that EPS could not feasibly be recycled and, thus, should be banned from commercial use within the city. “City Council prudently left determination of predictive questions about the future feasibility and sustainability of recycling foam waste to the judgement of the Commissioner,” the appeal argues. “[The trial court] was wrong to second guess the Commissioner’s determination based primarily on a short-term recycling plan proposed by the world’s largest foam manufacturer.” Additional information about the lower court’s ruling appears in Issue…
Proximo Spirits, Inc. has settled a class action alleging it deceptively marketed Tincup Whiskey® as manufactured entirely in Colorado despite part of its production occurring in Indiana. Aliano v. Proximo Spirits, Inc., No. 14-17429 (Ill. Cir. Ct., Cook Cty., preliminary approval entered September 16, 2015). Proximo has agreed to establish a $425,000 settlement fund to pay class members with proofs of purchase $4.50 and $2.25 to those without, per bottle purchased. In addition, class members who purchased Tincup for on-premises consumption can receive $0.75 up to a maximum of five drinks. Future Tincup labels will no longer feature claims that the product was manufactured entirely in Colorado and instead must identify the state or states where Proximo manufactured the product. Issue 580
A California state court has approved the settlement agreement in a lawsuit brought by the Center for Environmental Health (CEH) alleging that PepsiCo Inc. products contain levels of 4-methylimidazole (4-MEI) that exceed the limits imposed by the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ctr. for Envtl. Health v. Pepsi Beverages Co., No. 14711020 (Cal. Super. Ct., order entered September 17, 2015). Under the settlement agreement, PepsiCo will pay $385,000 and must ensure by January 1, 2016, that its soft drinks sold in California contain levels of 4-MEI within the safe harbor limits set by Prop. 65. CEH initially filed a notice of violation with the California Office of the Attorney General in January 2012; details appear in Issue 427 of this Update. Meanwhile, the parties to a proposed class action alleging similar facts have agreed to stay the case until December 14, 2015, pending…
A New York state court has vacated a New York City prohibition on expanded polystyrene foam (EPS) after a challenge by several food companies, supermarkets and food-service businesses that used EPS in their food packaging. Dart Container Corp. v. De Blasio, No. 100734/15 (N.Y. Super. Ct., order entered September 21, 2015). The court provides a history of the municipal ban—more specifically, a statute dictating that EPS would be prohibited in favor of recyclable materials unless the commissioner of the Department of Sanitation of New York (DSNY) found it to be recyclable—which went into effect July 1, 2015, with penalties delayed until January 2016. Among the plaintiffs are Dart Container Corp., the largest EPS manufacturer, and Plastics Recycling Inc., an EPS recycler, which offered proposals that would designate EPS as recyclable and thereby permit it under the city statute. “The mandate to the Commissioner was to determine whether EPS should be designated…
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…
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…
