A California man has filed a legal malpractice claim against lawyers who allegedly failed to represent him adequately in his suit against fruit processor Townsend Farms, in which he claimed he contracted hepatitis A after eating the company’s Organic Antioxidant Blend. Durrell v. Taylor, Sullivan & Mondorf, No. BC667419 (Cal. Sup. Ct., Los Angeles Cty., filed July 6, 2017). In 2013, the U.S. Food and Drug Administration announced that it was working with the Centers for Disease Control and Prevention as well as state and local officials to investigate a multistate outbreak of hepatitis A and confirmed that 162 people had become ill after eating the product. In 2014, Durrell sued Townsend Farms in Yolo County, California, and his case was later consolidated with others in Los Angeles County. The complaint alleges that his attorney failed to respond to discovery requests or motions to compel, resulting in the levy of…
Blue Buffalo Pet Products faces a proposed class action alleging that three of its dog-food products contain unsafe levels of lead despite being advertised as “healthy” and “holistic.” Zakinov v. Blue Buffalo Pet Products, No. 17-1301 (S.D. Cal., filed June 26, 2017). The plaintiff, who asserts that his four-year-old dog died from kidney disease after eating “Blue Wilderness Chicken Recipe for Small Breed Adult Dogs,” “Blue Freedom Grain-Free Chicken Recipe for Small Breed Adult Dogs” and “Blue Basics Grain-Free Turkey & Potato Recipe for Adult Dogs,” alleges that independent lab testing found the products contained between 140 and 840 parts per billion of lead. Claiming negligent misrepresentation, negligence per se and violations of California consumer protection laws, the plaintiff seeks class certification, injunctive relief, corrective advertising, restitution, disgorgement, damages and attorney’s fees. Issue 640
The Gluten Intolerance Group of North America (GIG), a nonprofit consumer-advocacy and food-safety certification group, has filed a lawsuit against celebrity chef Jamie Oliver alleging that his website displays a designation on gluten-free recipes that infringes the group’s trademarks. Gluten Intolerance Grp. of N. Am. V. Jamie Oliver Enters., No. 17-1028 (W.D. Wash., filed July 7, 2017). GIG alleges that Oliver’s website displays the letters “GF” inside a circle near gluten-free recipes, a mark which is identical or substantially similar to one of GIG’s registered word and design marks. Claiming trademark infringement, counterfeit of a registered mark, unfair competition and false designation of origin under the Lanham Act, the plaintiffs seek injunctive relief, recall of all materials using the contested mark, a public disclaimer of connection with GIG, corrective advertising, damages and a designation of the lawsuit as an exceptional case entitling GIG to an award of attorney’s fees. …
A New York plaintiff has filed a proposed class action against Dunkin’ Brands alleging the chain’s "Angus Steak" breakfast sandwiches contain beef patties rather than Angus steak. Chen v. Dunkin’ Brands, No. 17-3808 (E.D.N.Y., filed June 25, 2017). The complaint alleges that the restaurant’s “Angus Steak and Egg Sandwich” and “Angus Steak and Egg Snack N’ Go Wrap” do not contain “steak” but instead a beef patty of “minced meat which contains ‘fillers and binders.’” Claiming violations of state consumer-protection laws and the Magnuson-Moss Warranty Act, unjust enrichment, breach of warranties and negligent misrepresentation, the plaintiff seeks class certification, disgorgement, damages and attorney’s fees. Issue 640
The makers of Sensible Portions Garden Veggie Straws face a proposed class action alleging the company misrepresented the vegetable content and nutritional value of the product. Solak v. Hain Celestial Grp., No. 17-0704 (N.D.N.Y., filed June 29, 2017). The plaintiffs assert that Garden Veggie Straws are marketed as containing “garden grown potatoes [and] ripe vegetables” and display tomatoes, potatoes and spinach on the packaging, but the first ingredients listed are “potato starch, potato flour, corn starch, tomato paste and spinach powder.” In addition, the plaintiffs assert that while tomatoes and spinach are “excellent sources” of vitamins A and C, Garden Veggie Snacks contain no vitamin A and only two percent of the recommended daily amount (RDA) of vitamin C. The complaint further alleges that the snacks are advertised as containing 30 percent less fat than “the leading potato chip," but a single serving of Lay’s Classic potato chips apparently contains…
A California couple has filed two putative class actions alleging that the makers of Lay’s® and Pringles® salt-and-vinegar flavored chips mislabel and deceptively advertise their products, leading customers to believe the chips are naturally flavored when they actually contain artificial chemical flavorings. Allred v. Kellogg, No.17-1354 (S.D. Cal., removed to federal court July 5, 2017); Allred v. Frito-Lay N. Am., No. 17-1345 (S.D. Cal., removed to federal court July 3, 2017). In both suits, the plaintiffs claim the manufacturers label and advertise the potato snacks “as if [they] were flavored only with natural ingredients” and as containing “no artificial flavors.” The plaintiffs allege that although both products contain “actual vinegar—but in an amount too small to flavor the product,” the chips’ vinegar flavors are artificial. The Lay’s® complaint alleges that the label states the product contains malic acid; although l-malic acid can be found naturally in fruits and vegetables, the plaintiffs…
After years of litigation over whether Florida should reimburse residents whose healthy citrus trees were cut down in an effort to eradicate citrus canker, the Florida Supreme Court has upheld Gov. Rick Scott's veto of $37.4 million appropriated by the state legislature that would have paid judgments to homeowners in two counties. Bogorff v. Scott, No. 17-1155 (Fla., order entered July 13, 2017). From 2000 to 2006, Florida attempted to eradicate citrus canker in the state, eventually chopping down more than 500,000 orange, grapefruit and key lime trees throughout the state located within 1,900 feet of an infected tree, even if the trees showed no signs of the disease. In May 2017, lawmakers budgeted funds to pay previous judgments awarded to homeowners in Lee and Broward counties, two of the five counties affected. Gov. Scott used a line-item veto to stop the budgeted payments; the Lee county plaintiffs then sought…
The Illinois Appellate Court has upheld a temporary restraining order that stopped a proposed one-cent per-ounce tax on sugar-sweetened beverages (SSBs) from going into effect in Cook County on July 1, 2017. Illinois Retail Merchs. Ass’n v. Cook Cty. Dep’t of Revenue, No. 2017L050596 (Ill. Cir. Ct., Cook Cty., filed June 27, 2017). The Illinois Retail Merchants Association filed for the order along with preliminary and permanent injunctions against imposition of the tax, arguing it violates the uniformity clause of the state constitution and is unconstitutionally vague. The plaintiffs allege that the tax applies to distributors and retailers who sell bottled sweetened beverages and syrups or powders used to produce SSBs but not to SSBs prepared by hand, such as those made by baristas, even if they contain more sugar than a comparable bottled or “pre-made” product. Issue 640
Sen. Chuck Schumer (D-N.Y.) has urged the U.S. Food and Drug Administration to launch a formal investigation into "Coco Loko," a "snortable chocolate" product that contains stimulants akin to those found in energy drinks. He argues that the product "isn't even pure chocolate" and is "chock full of concentrated energy drink ingredients masked and marketed under the innocence of natural and safe chocolate candy." “I can’t think of a single parent who thinks it is a good idea for their children to be snorting over-the-counter stimulants up their noses,” Schumer said in a July 10, 2017, press release. “This product is like cocaine on training wheels.” Issue 640
Food and beverage companies offering retail sales on the web are facing a wave of lawsuits filed by visually impaired plaintiffs alleging that the companies’ failure to design websites that work with adaptive screen-reading software violates the Americans with Disabilities Act (ADA). In “Because of ‘Winn-Dixie’?: Uncertainty over ADA’s Applicability to Websites Deepens,” Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield examine a recent ruling in the Southern District of Florida holding that a grocery chain violated Title III of the ADA because its website was inaccessible. Cruz-Alvarez and Canfield summarize Gil v. Winn-Dixie Stores, No. 16-23020 (S.D. Fla. June 12, 2017), and explain that federal courts are split on the issue of whether the ADA applies to non-physical spaces, leaving “a whole new host of legal challenges. . . . There is very little structure, and even less clarity, in this emerging area of the law.” In the interim, the authors say,…
