Fifth Generation, Inc. will reportedly discontinue advertising asserting that its Tito's Handmade Vodka scored higher in taste tests than four of its competitors. Absolut Spirits Co. challenged the advertising claims before the National Advertising Division (NAD), arguing that the tests were completed before 2010 and are therefore outdated. Further, Absolut argued, the challenged ads implied that the taste tests occurred as comparisons between the five brands rather than five independent tests that were not conducted concurrently. In lieu of offering substantiation, Fifth Generation opted to permanently and voluntarily discontinue the claims.
An Illinois federal court has dismissed part of a putative class action against Lenny & Larry's Inc., holding that the plaintiffs lack standing and that the application of 50 differing state laws is “unmanageable on a class-wide basis because those states’ laws conflict in material ways.” Cowen v. Lenny & Larry’s Inc., No. 17-1530 (N.D. Ill., entered October 12, 2017). The complaint alleged that Lenny & Larry’s advertises “The Complete Cookie” as “Plant-Based Protein to Build Lean Muscle,” labeling the cookies as vegan, non-GMO, kosher, dairy-free and soy-free without artificial sweeteners or sugar alcohols. The four-ounce cookie is advertised as containing 16 grams of protein, but the plaintiffs allege that independent testing showed the actual protein content of each cookie can vary from four to nine grams. The court held that the named plaintiffs could not establish they had sustained an injury from cookie flavors they had not purchased. “[T]he…
A Texas appeals court has held that Mark Anthony Brewing cannot produce and label a house-brand beer for TGI Friday’s restaurants because state law prohibits “overlapping” relationships among alcohol manufacturers, distributors and retailers. Texas Alcoholic Beverage Comm’n v. Mark Anthony Brewing, Inc., No. 16-0039 (Texas Ct. App., entered October 13, 2017). The Texas Alcoholic Beverage Commission (TABC) rejected Mark Anthony Brewing's application for approval of the beer labels, which it created as part of a licensing agreement with TGI Friday's, on the grounds that Texas’ “tied-house” statutes prohibit such business relationships. Specifically, TABC found, the agreement violated the part of the administrative code providing that “[n]o application for a label shall be approved which indicates by any statement, design, device, or representation that the malt beverage is a special or private brand brewed or bottled for, or that includes the name, trade name, or trademark of any retailer permittee or…
A putative class action plaintiff has filed a lawsuit alleging that Ghirardelli Chocolate Co. puts fewer chocolates in packages of individually wrapped, single-serving chocolate squares than the number advertised on labels. Brungard v. Ghirardelli Chocolate Co., No. 17-5873 (N.D. Cal., filed October 12, 2017). The plaintiff asserts that he bought chocolates in 10-, 17- and 40-count bags in various flavors “many times over several years” and allegedly found "one less individually-wrapped square in the packages he purchased.” According to the complaint, Ghirardelli told the plaintiff that the contents were based on weight rather than the printed servings on the label. Claiming violations of the California Consumer Legal Remedies Act, unfair business practices, unjust enrichment, consumer fraud, negligent misrepresentation, intentional misrepresentation and false advertising, the plaintiff seeks class certification, damages, injunctive relief, restitution and attorney’s fees.
This week, Shook, Hardy & Bacon celebrates 15 years of the Food & Beverage Litigation Update. Our first issue, published October 9, 2002, explored a number of legislative and litigation trends—including a governmental initiative to ban soft drinks in schools, a lawsuit challenging allegedly toxic ingredients in a protein bar and a U.S. Food and Drug Administration meeting on acrylamide—that we continue to cover each week as they progress through the evolving regulatory landscape. With our 650th issue, we are excited to announce the launch of the Food & Beverage Litigation Update website. On the website, you can find all 650 issues of the Update in the Archive as well as many issues divided into individual stories that are tagged and categorized with subjects and jurisdictions for your browsing convenience. We will continue to send you a weekly compilation of our coverage, and we welcome you to follow along with…
The Journal of Nutrition Education and Behavior has published a study in which youth aged 12-25 suggested strategies to reduce youth energy-drink consumption. Jacinta Francis, et al., “Informing Intervention Strategies to Reduce Energy Drink Consumption in Young People: Findings From Qualitative Research,” Journal of Nutrition Education and Behavior, October 2017. Researchers reportedly found that while the subjects were familiar with energy drinks, they did not agree as to whether the term included coffee, sports drinks, nutritional supplements and soft drinks. Some were apparently aware that the drinks contained caffeine and sugar, the study noted, but few were aware they contained other ingredients or could explain how the drinks allegedly work. The participants also said advertising, promotions and peer pressure influenced consumption. They suggested five strategies to reduce consumption: (i) restrictions on sales and availability; (ii) changes in packaging; (iii) price increases; (iv) reducing visibility in retail outlets; and (v) research…
Burger King has agreed to settle a putative class action alleging some of the chain’s locations overcharged consumers who presented buy-one-get-one-free coupons for breakfast sandwiches, charging them more than they would have paid without the coupons. Anderson v. Burger King, No. 17-1204 (D. Md., motion filed October 11, 2017). According to the plaintiff’s unopposed motion for settlement, Burger King began an internal investigation of the complaint’s allegations and promptly sent a software update to franchises and written instructions to restaurant cashiers to ensure the problem stopped. If the class is certified for the purposes of the settlement, class members who have receipts will receive $5 payments and those without will receive $2 gift cards.
Danny Meyer, David Chang, Jonah Miller, Tom Colicchio and other restaurateurs have been named as defendants in a putative class action that alleges a business strategy to eliminate tipping and replace it with a service charge of at least 20 percent is price-fixing and a conspiratorial restraint of trade that violates the federal Racketeer Influenced and Corrupt Organizations Act and Sherman Act. Brown v. 140 NM LLC, No. 17-5782 (N.D. Cal., filed October 5, 2017). The complaint alleges that the restaurateurs' agreement constitutes price-fixing because the restaurants involved conspired to raise their prices simultaneously. Meyer, CEO of Union Square Hospitality Group, is alleged to have spearheaded the “conspiracy.” The complaint cites dozens of newspaper articles, television and radio interview transcripts, trade group meetings and tweets in which Meyer and other defendants discussed the reasons for implementing the change and explaining the competitive advantages of acting as a group. According to…
A California federal court has dismissed a consolidated putative class action alleging that Quaker Oats falsely advertised breakfast cereals as containing maple syrup or sugar, holding that the claims were preempted by the Food, Drug and Cosmetic Act (FDCA) and the Nutritional Labeling and Education Act amendment (NLEA), despite a “maple syrup” exception that allows states to regulate maple syrup. In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litig., No. 16-1442 (C.D. Cal., entered October 10, 2017). The plaintiffs asserted that the NLEA’s preemption provision contains an exception for state laws applicable to maple syrup. The court disagreed, holding that each of the subsections of the exception permit states to regulate what kinds of products may be sold as maple syrup and that the plain language of the subsections did not permit a broader reading to cover “any claim relating to maple syrup.” If Quaker uses the word…
The European Court of Justice (ECJ) has ruled that all online and mail-order sellers of organic products—including small producers and sellers that would otherwise be exempt from the requirements—must obtain sales permits to avoid fraud and mislabeling and maintain “consumer confidence” in products labeled as organic. Kamin und Grill Shop GmbH v. Zentrale zur Bekampfung unlauteren Wettbewerbs eV, No. C-289/16 (ECJ, entered October 12, 2017). Kamin, a mail-order and internet business, began marketing spice mixes in 2012 that it labeled as organic. A German consumer advocacy group challenged the sales, and the German Bundesgerichtshof (Federal Court of Justice) referred the case to ECJ. The court found that in the case of online or mail-order retail sales, product storage and delivery by intermediaries created a risk of re-labeling, exchange or contamination so the “direct” sales exemption for small, face-to-face sellers should not be construed broadly.
