A District of Columbia court has determined that a plaintiff who purchased a bottle of Pompeian-brand extra-virgin olive oil (EVOO) after learning that testing done in 2010 and 2011 concluded that certain EVOO brands did not satisfy U.S. and international EVOO standards has standing to bring certain consumer-fraud claims despite purportedly believing that the product was defective when purchased. Mostofi v. Mohtaram, Inc., No. 2011 CA 163 B (D.C. Super. Ct., order entered November 12, 2013). Thus the court rejected the defendant’s “manufactured” or “self-inflicted” injury standing argument. According to the court, “The dispositive consideration is that Plaintiff is a consumer who engaged in a consumer transaction.” The court also disagreed with the defendant that the plaintiff lacked expert testimony or that his sampling testing was insufficiently reliable to support two claims of statutory consumer fraud, finding they were matters of fact to be determined by a jury. The court…
A federal court in California has given preliminary approval to the settlement of a nationwide class alleging that Cytosport, Inc. misleads consumers by representing that its Muscle Milk® Ready-to-Drink products are healthy and nutritious when they actually contain the same amount of calories and almost as much fat as a doughnut. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., order entered November 18, 2013). Additional information about the settlement and litigation appear in Issue 475 of this Update. The court has scheduled a May 15, 2014, final approval hearing.
A California resident has filed a putative nationwide class action against Pacific Foods of Oregon, Inc., alleging that the company falsely labels its Hemp NonDairy Beverage® products as “all natural” despite the presence of processed and artificial ingredients and misbrands them by listing as an ingredient “evaporated cane juice.” Perera v. Pac. Foods of Or., Inc., No. 13-1788 (C.D. Cal., filed November 13, 2013). Plaintiff Sadisha Perera claims that she purchased one specific beverage relying on the prominent “all natural” labeling, but seeks to represent class members who purchased a number of other hemp non-dairy products that are purportedly substantially similar. According to the plaintiff, she would not have purchased the products if she had known that ingredients, such as calcium phosphate, disodium phosphate, xanthan gum, and certain vitamins, listed on the product in smaller print, were non-natural. She claims that she did not get the benefit of the bargain…
A federal court in California has denied the motion to dismiss putative class claims that Jamba Juice falsely labels its frozen smoothie kits as “all natural,” finding that while the plaintiffs lack standing to assert claims related to products they did not buy, “they may seek to represent a class of people who have purchased those products, as long as all plaintiffs, named and absent, have standing in their own right, and as long as the prerequisites to class certification are satisfied.” Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered November 18, 2013). The court will address whether the named plaintiffs may represent the proposed class at class certification and ordered them to file their certification motion by February 3, 2014.
A federal court in Illinois has denied a request that it reconsider an earlier order denying certification of a multi-state class of single-serve coffee purchasers allegedly deceived into believing that the product was ground coffee and not instant; the court has also granted the defendants’ motions for summary judgment. Suchanek v. Sturm Foods, Inc., No. 11-565 (S.D. Ill., decided November 20, 2013). Information about the court’s previous ruling appears in Issue 496 of this Update. According to the court, “[t]he problem with the proposed class here is that showing reliance or causation—as required to establish liability requires an investigation of each purchaser.” The court details the purchasing experiences of each named plaintiff in this consolidated action and finds that most did not read the packaging, understood what the word “soluble” means or purchased the product due to price, shelf placement, imagery, or because they liked to try new things. Finding that…
In a summary order, the Second Circuit Court of Appeals has affirmed a lower court’s dismissal of employee claims that Starbucks Corp. violated New York law by allowing shift supervisors to share store tip pools with baristas. Barenboim v. Starbucks Corp., No. 10-4912 (2d Cir., decided November 21, 2013). Details about the New York Court of Appeals ruling on which the Second Circuit relied appear in Issue 489 of this Update. The New York court rejected the baristas’ claims that state law barred “any employee with ‘even the slightest degree of supervisory responsibility’ from sharing tips.” Because it was “undisputed that Starbucks’s shift supervisors spend a majority of their time performing the same duties as baristas, and are primarily responsible for serving food and beverages to customers,” the Second Circuit found “no genuine dispute of material fact as to whether § 196-d permits shift supervisors to participate in Starbucks’s tip pools.”…
San Francisco Supervisor Eric Mar has reportedly unveiled a proposal for a tax on sugar-sweetened beverages (SSBs) similar to one released in late October by Supervisor Scott Weiner. Both proposals target SSB distributors, both impose a 2-cents-per-ounce tax and both reportedly expect to raise $30 million annually to fund health and nutrition programs to combat diabetes and other health issues allegedly associated with consumption of soft drinks, energy drinks and other SSBs. According to a news source, Weiner and two other supervisors are co-sponsoring Mar’s legislation, but Mar said all four supervisors will work together to combine both proposals into one piece of legislation that they plan to put before voters in November 2014. See SFGate.com, November 22, 2013.
Two Hawaiian counties have reportedly passed legislation designed to tighten regulations on biotech companies and the planting of genetically modified (GM) crops. After delaying the ballot to appoint a new member as a replacement for Nadine Nakamura, who vacated her seat to become Mayor Bernard Carvalho’s managing director, the Kauai County Council apparently voted 5-2 to override the mayor’s veto of a bill requiring agricultural companies to disclose information about their pesticide use and establishing no-spray zones around schools, residences, medical facilities, roads, and waterways. Slated to take effect in August 2014, the initiative has drawn criticism from seed and biotech companies, which have already considered taking the matter to court. Carvalho has also purportedly warned that the law could be open to challenge under state and federal preemption rules, the state’s Right to Farm Act and provisions in the County Charter. Additional details about the legislation appear in Issue…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has changed the basis for listing 1,2-dibromo-3 chloropropane (DBCP), an agricultural fumigant that persists in groundwater despite being banned from use by the U.S. Environmental Protection Agency in 1979. “Based on changes to certain federal regulations that affect the bases for the original listings, OEHHA has accordingly changed the bases for listing these chemicals,” according to the agency. DBCP was originally added to the Prop. 65 list of chemicals known to the state to cause reproductive toxicity in 1987 under the Labor Code, and its listing date will remain the same. Another chemical subject to the notice is ethylene oxide, which is used to make the raw material (PET) in plastic bottles. See OEHHA Press Release, November 21, 2013. Issue 505
The U.K. Advertising Standards Agency (ASA) has upheld a complaint claiming that a TV advertisement with a “prices may vary” disclaimer was misleading because the complainant was unable to purchase the product for the stated price. Created by Kentucky Fried Chicken (Great Britain) Ltd. (KFC), the commercial in question indicated that families could “save a fiver” by purchasing “the new KFC Family Burger Box,” instead of buying the components a la carte. On-screen text apparently clarified, “Item[] shown £20.51 if bought individually. Prices may vary.” According to ASA, Kentucky Fried Chicken explained that the phrase “prices may vary” “referred to both the a la carte menu pricing of individual items, the price of the Family Burger Box and the exact saving made between those two prices.” To convey this information, the company chose the text “prices may vary” rather than “price may vary” “to be clear that this referred to…
