A California federal court has denied Vigo Importing Co.’s motion to dismiss a lawsuit alleging the company mislabels its products as containing octopus when they are actually composed of jumbo squid. Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., order entered October 26, 2016). Vigo Importing sought to dismiss the claim on jurisdictional grounds, arguing that based on its sales figures, the amount in controversy could not possibly meet the $5 million threshold required by the Class Action Fairness Act to allow a federal court to consider the case. The court disagreed, noting that the sales price was only part of the calculation; the potential damages determination requires information on the cost of the products as well as the value of the product if composed of jumbo squid. Details on the complaint appear in Issue 602 of this Update. Issue 621
A New York federal court has dismissed a consumer’s lawsuit alleging Mondelez International sells its Sour Patch Watermelon candy with unpermitted slack fill. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., order entered October 26, 2016). The lead plaintiff had asserted that the box he purchased contained 28 pieces of candy but had enough space for 50 pieces. Additional details about the complaint appear in Issue 609 of this Update. After finding that the plaintiff did not have standing for an injunction, the court turned to the candy company’s arguments, dismissing its assertion that the accurate net weight released it from liability. Further, the court found it inappropriate to consider at the motion-to-dismiss stage whether a consumer could determine the contents of the package by shaking or squeezing it. The court was persuaded by Mondelez’s argument that the plaintiffs had failed to state a claim because they did not clarify what…
The Pennsylvania Supreme Court has denied an application for extraordinary relief filed by several industry groups in an effort to prevent Philadelphia’s 1.5-cent-per-ounce tax on sugar-sweetened beverages (SSBs) from taking effect on January 1, 2017. Williams v. City of Philadelphia, No. 160901452 (Ct. C.P., Philadelphia Cty., order entered November 2, 2016). The one-page order does not provide any reasoning for the decision. The lower court currently presiding over the case has indicated that it will rule on the tax’s legality before the January 1 enforcement date. See The Philadelphia Inquirer, November 2, 2016. Details about the industry lawsuit appear in Issue 617 of this Update. Issue 621
The U.S. Food and Drug Administration (FDA) has requested public input on how consumers use “flavored nut butter spreads and products that can be used to fill cupcakes and other desserts,” as part of its effort to establish a reference amount customarily consumed (RACC) and serving size for these products. Responding to a March 4, 2014, citizen petition filed by Nutella® manufacturer Ferrero Inc., which asked FDA to re-categorize nut cocoa-based spreads as a breakfast condiment similar to “honey, jams, jellies, fruit butter, [or] molasses” as opposed to a dessert topping, the agency notes that it has since updated certain RACCs and needs additional data “to determine the customary consumption amounts of and appropriate product category for flavored nut butter spreads (e.g., cocoa, cookie, and coffee flavored).” To decide if it needs to create a new RACC category for these products with a serving size of 1 tablespoon, FDA seeks responses to…
The Federal Trade Commission (FTC) has approved a modified final order settling charges that the $28-billion merger of Delhaize Group NV/SA and Koninklijke Ahold N.V. would be anticompetitive. In re Koninklije Ahold N.V., No. C-4588 (F.T.C., order entered October 14, 2016). According to the modified order, the companies must divest 81 stores—including locations of Giant, Hannaford, Martin’s, Food Lion and Stop & Shop—to seven companies before merging. Issue 621
The Cornucopia Institute has filed a complaint with the U.S. Department of Agriculture “requesting an investigation into the organic certification of hydroponic operations in the U.S. that appear to conflict with the statutory language of the Organic Foods Production Act (OFPA) of 1990 and current federal regulations governing organic food production.” The organization argues that two companies, Wholesum Harvest Family Farms and Driscoll’s, sell hydroponically raised produce as certified organic despite failing to meet federal standards on the contents of their soil, which allegedly include peat moss, coconut cuir and hydrolyzed soy fertilizers made from genetically modified soybeans. “Hydroponic and container systems rely on liquid fertilizers developed from conventional crops or waste products,” said a Cornucopia Institute farm policy analyst in a November 1, 2016, press release. “Suggesting that they should qualify for organic labeling is a specious argument.” Issue 621
A New York consumer has filed a lawsuit against Buffalo Wild Wings, Inc. (BWW) alleging the company misleads vegetarian customers into believing the restaurant chain offers vegetarian fare when certain offerings are actually cooked in beef tallow. Borenkoff v. Buffalo Wild Wings, Inc., No. 8532 (S.D.N.Y., filed November 2, 2016). The complaint asserts that BWW does not disclose its use of beef tallow in its menu descriptions, nutritional information or website, and further, the usage departs from the industry standard of non-beef cooking oil. The plaintiff seeks class certification, an injunction, compensatory and punitive damages, costs and attorney’s fees for an alleged violation of New York’s consumer-protection statute and unjust enrichment. Issue 621
A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…
A consumer has filed a putative class action against Dole Packaged Foods, LLC alleging the company’s products contain too much added sugar to be labeled as “rich in nutrients” or “healthy.” Amaya v. Dole Packaged Foods, LLC, No. 15-7734 (C.D. Cal., filed October 18, 2016). The complaint first details research connecting added sugar intake to detrimental health effects, including type 2 diabetes, cardiovascular disease and metabolic syndrome, then asserts that Dole’s products containing added sugar are misleadingly labeled. “Dole’s representations that Dole Fruit & Oatmeal contains ‘real fruit!’ and ‘No Trans Fat or Cholesterol,’ and is ‘a healthy . . . Breakfast’ are false, or even if literally true at least highly misleading, in light of the substantial added sugar in the Dole Fruit & Oatmeal products,” the plaintiff argues. The complaint also alleges the labeling claims are unlawful because (i) a statement indicating that the product is free of…
A D.C. federal court has denied McCormick & Co.’s motion to dismiss a competitor’s lawsuit alleging the company’s black pepper packaging contains too much slack fill. In re McCormick & Co., Inc., Pepper Prods. Mktg. & Sales Practices Litig., No. 15-1825 (D.D.C., order entered October 17, 2016). The lawsuit is part of multidistrict litigation joining several consumer class actions with similar allegations. McCormick challenged Watkins Inc.’s standing to sue and asserted that the company failed to state a claim under the Lanham Act, arguing that its packaging does not constitute advertising. The court disagreed, noting, “McCormick argues that size of its pepper tins is not commercial speech, but it is difficult to understand how the size of a package or container could possibly not be considered a form of ‘advertising or promotion.’ [] The size of a package signals to the consumer vital information about a product and is as…
