A California federal court granted Campbell Soup Co.’s motion to dismiss a putative class action claiming the company “falsely and misleadingly labeled and advertised” one of its soups, ruling that the plaintiff’s claims are expressly preempted by federal law. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., order entered March 21, 2017). The plaintiffs alleged that Campbell’s Chunky Healthy Request Grilled Chicken & Sausage Gumbo was mislabeled and advertised as healthy despite containing artificial trans fat. Additional details about the complaint appear in Issue 602 of this Update. Campbell contended that the plaintiff’s claims were preempted by the Poultry Products Inspection Act (PPIA) and the Federal Meat Inspection Act (FMIA), both of which prohibit the sale of products with false or misleading labeling or marketing. Pursuant to both statutes, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) inspects and approves product labels. The court agreed, noting…
A Florida federal court has dismissed part of a data breach complaint against Wendy’s, calling two of the claims “shotgun pleadings” and noting that the plaintiffs “misconstrue the basic legal principles of statutory law.” Torres v. Wendy’s Int’l, LLC, No. 16-0210 (M.D. Fla., order entered March 21, 2017). Additional details on the case appear in Issues 594 and 612 of this Update. The plaintiffs originally filed suit in February 2016 after a data breach of Wendy’s credit card payment system, but the Florida court dismissed the suit for failure to plead an injury sufficient to prove standing. Ruling on the amended complaint, the court found that the plaintiffs could establish standing based on “particularized, concrete injuries,” including late fees, loss of credit card reward points and loss of cashback awards. The court refused to dismiss a breach of implied contract count, reasoning that when a merchant invites a customer to…
The U.S. Court of Appeals for the Eleventh Circuit has overturned a Florida court's summary judgment against Ocheesee Creamery, finding that the company can sell its milk product as skim milk despite its refusal to follow a Florida law requiring skim milk to be fortified with vitamin A. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir., order entered March 20, 2017). Additional details on the lower court's rulings appear in Issues 555 and 599 of this Update. Florida initially told Ocheesee that it could sell its skim milk as "imitation skim milk," but Ocheesee objected to the description of its natural, unfortified milk as "imitation." Ocheesee rejected other suggested labels as well, including "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed," then filed a lawsuit asserting a First Amendment right to describe its product as "skim milk." The lower court granted summary judgment in favor of Florida, finding that…
The Hungarian National Assembly is reportedly considering a proposed ban on Soviet and Nazi symbols that would impose fines of up to $6.97 million and a potential prison sentence on businesses using such marks, likely including Heineken and its red star logo. The ban targets symbols related to Hungary's years of Nazi occupation and decades of communist rule, including the swastika, hammer and sickle, arrow cross and red star. Hungary's Deputy Prime Minister Zsolt Semjen, a co-sponsor of the bill, reportedly called Heineken's red star logo "obvious political content" and would not deny that the bill was retaliation for a lengthy legal battle between Heineken and a brewery in Transylvania, a region of Romania home to many ethnic Hungarians. See Reuters, March 20, 2017. Issue 628
Sen. Jon Tester (D-Mont.) and Rep. Rosa DeLauro (D-Conn.) have urged the federal government to act in response to a Brazilian investigation allegedly finding that more than 100 of the country's health inspectors allowed the sale of rancid meat, falsified export documents or failed to inspect meatpacking plants. Tester introduced a bill in the U.S. Senate purporting to temporarily ban Brazilian beef imports. "A 120-day ban will provide the U.S. Department of Agriculture time to comprehensively investigate food safety threats and to determine which Brazilian beef sources put American consumers [at] risk," Tester's March 21, 2017, press release asserts. In a March 22 press release, the U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service announced additional pathogen testing of all raw beef and ready-to-eat products from Brazil. "Keeping food safe for American families is our top priority,” Acting Deputy Secretary of Agriculture Mike Young was quoted as saying.…
The Government Accountability Office (GAO) has issued a March 2017 report noting several oversight gaps in federal agencies’ efforts to track and curtail antibiotic use in food animals. According to GAO, the Departments of Health and Human Services (HHS) and Agriculture (USDA) have implemented several measures designed to reduce antibiotic resistance by increasing veterinary supervision of animal drug use; altering drug labeling guidance; and collecting data from food producers on their antibiotic regimens. But GAO notes that these initiatives fall short of the more stringent government regulations promulgated by Canada, Denmark and the European Union, which have reportedly achieved reductions in antibiotic use in food animals and improved data collection. “For example, changes to drug labels do not address longterm and openended use of antibiotics for disease prevention because some antibiotics do not define duration of use on their labels,” states GAO. “FDA officials told GAO they are seeking public…
A study has purportedly suggested that antibiotic treatments for foulbrood and other pathogens can disrupt the gut microbiota of honeybees, increasing their susceptibility to opportunistic bacterial infections. Kasie Raymann, et al., “Antibiotic exposure perturbs the gut microbiota and elevates mortality in honeybees,” PLoS Biology, March 2017. To examine the effects of common bee antibiotics, University of Texas researchers followed specimens from a single hive that received either sugar water or tetracycline. Their results evidently showed “that honeybees treated with antibiotics and returned to the hive had decreased survivorship when compared to untreated bees.” The authors further note, “Control bees had, on average, five times more bacterial cells in their guts than bees treated with tetracycline.” Tetracycline also failed to eliminate the targeted bacterial species in the treated bees, raising questions among the researchers about antibiotic resistance in domestic bee populations. “The aim of the study was for us to better…
Warner Brothers, the film studio that owns the rights to the Willy Wonka movies, has asked the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office to stop a Georgia craft brewer’s use of “Golden Ticket” as the name for a chocolate stout beer, claiming that the name could lead some to believe the filmmaker is promoting underage drinking. Warner Bros. Entm’t Inc. v. S. Sky Brewing Co., No. 91233169 (T.T.A.B., filed March 1, 2017). In the Willy Wonka movies, children who found golden tickets tucked inside chocolate-bar packaging won a tour of the chocolate factory and a chance to win a grand prize. Warner Brothers claims the name “Golden Ticket” is an “intent to capitalize” on the popularity of the films, alleging that Southern Sky’s beer is advertised as “reminiscent of a chocolate hazelnut candy bar and as creamy as chocolate milk,” reinforcing the “mental association”…
A Georgia court has dismissed with prejudice a complaint against television personality Mehmet Oz accusing the physician of making false claims about the quality of olive oil in the United States, finding that Oz’s statements were protected under a state anti-SLAPP (strategic lawsuit against public participation) law protecting speech made in connection with an issue of public concern. N. Am. Olive Oil Assoc. v. Oz, No. 2016-283156, (Sup. Ct. Ga., Fulton Cty., order entered March 3, 2017.) The North American Olive Oil Association alleged that Oz and his guests made “false statements regarding the quality and purity” of olive oil sold in U.S. supermarkets. One of the guests was employed by olive oil producer California Olive Ranch, but the guest’s ties to the company were allegedly not disclosed on the show. The court said it had “grave concerns that the motivation for the present action falls directly within the purpose…
A Connecticut plaintiff filed a projected class action against Subway after DNA testing of the chain’s chicken sandwiches allegedly showed the meat was only 42 to 53 percent chicken and the remainder was processed soy. Moskowitz v. Doctor’s Associates Inc., No. 17-0387 (D. Conn., filed March 1, 2017). Researchers affiliated with the Canadian Broadcasting Company’s “Marketplace” news show apparently found that the meat used in Subway’s oven-roasted chicken items was only 53.6 percent chicken, while the meat used in the sweet onion teriyaki items was only 42.8 percent chicken. The plaintiff claims that Subway is “disseminating false and misleading information via advertising, marketing, its website, and menu intended to trick unsuspecting customers, into believing they are purchasing chicken for their money, rather than Sandwiches and Chicken Strips containing a multitude of ingredients.” The complaint alleges violations of the federal Magnuson-Moss Warranty Act, the Connecticut Unfair Trade Practices Act, breach of…
