A federal court in Australia has determined that processors advertising their chickens as “free to roam” on packaging and in advertisements and publications were liable to mislead the public as to the nature and characteristics of the product. Australian Competition & Consumer Comm’n v. Turi Foods Pty. Ltd., (No. 4) [2013] FCA 665 (Fed. Ct. of Austl., decided July 8, 2013). The court’s opinion details the efforts undertaken to determine stocking densities at various stages of a chicken’s development and includes the results of site visits by the court, support staff and the parties’ legal representatives. At certain times in their development, according to the court, thousands of chickens live in such close proximity in the sheds that “very little, if any, of the floor surface could be seen.” Thus, the court ruled that the “impugned statements . . . were apt to mislead and deceive and were false insofar…
A woman who claims that her 19-year-old son died as a result of consuming at least two 16-oz. cans of Monster Energy® drinks every day for three years has filed a survival and wrongful death action against the company. Morris v. Monster Beverage Corp., RG1368528 (Cal. Super. Ct., Alameda Cty., filed June 25, 2013). According to the complaint, the young man went into cardiac arrest on July 1, 2013, “[w]hile engaged in sexual activity with his girlfriend,” and efforts to revive him were unsuccessful. The autopsy report allegedly attributed his death to “cardiac arrhythmia due to cardiomyopathy.” The plaintiff focuses on the beverage’s caffeine and other ingredients that have purportedly been shown to produce adverse health effects, “including cardiac arrest.” The plaintiff alleges strict liability—design defect, failure to warn—negligent design, manufacture, sale, and failure to warn; concealment, suppression or omission of material facts; breach of implied warranties; punitive damages; and…
Naked Juice Co. has agreed to settle putative class claims that it falsely advertised some of its juice and smoothie products as “all natural” and not genetically modified (GMO); while denying the allegations, the company will establish a $9 million settlement fund. Pappas v. Naked Juice Co. of Glendora, Inc., No. 11-8276 (C.D. Cal., motion for preliminary approval filed July 2, 2013). Members of the putative nationwide class will each be eligible under the proposed agreement to recover a maximum of $45 dollars. The agreement will also require Naked Juice to establish a product verification program, hire or assign a quality control manager to oversee the independent testing process for the company’s product line, establish a database to allow the electronic tracking and verification of product ingredients, and modify future labeling, advertising and marketing to cease using “All Natural” and related statements.
A federal court has awarded $90.8 million to the attorneys who represented African-American farmers in litigation against the U.S. Department of Agriculture alleging discrimination in the loan application process. In re Black Farmers Discrimination Litig., No. 08-0511 (D.D.C., decided July 11, 2013). Additional details about class counsels’ request appear in Issue 405 of this Update. Explaining the challenges counsel faced, their extensive efforts to secure an award for the class of farmers in excess of $1 billion, the millions they incurred in unreimbursed expenses, as well as the hours devoted to assisting the Claims Administrator during the claims process, the court found an award representing 7.4 percent of the claims fund reasonable. According to the court, “Class counsel have undertaken the immense challenge presented by this action with the utmost professionalism and integrity, exhibiting skill, diligence, and efficiency in all aspects of their duties.”
A coalition of animal rights organizations has sued U.S. Department of Agriculture (USDA) Secretary Tom Vilsack under the National Environmental Protection Act (NEPA), claiming that the agency failed to conduct a required environmental review before granting the application of a “horse slaughter plant operator in New Mexico, bringing the nation closer to its first horse slaughter operation since federal courts and state lawmakers shuttered the last three U.S.-based plants in 2007.” Front Range Equine Rescue v. Vilsack, No. 13-3034 (N.D. Cal., San Francisco Div., filed July 2, 2013). The parties agreed to voluntarily transfer the suit to the District of New Mexico as a more appropriate venue, and the court entered an order granting the transfer on July 10, 2013. Because the defendants advised the plaintiffs that no federal inspections at horse slaughter facilities will take place before July 29, the court vacated its expedited scheduling order. In their complaint,…
A California resident has filed consumer fraud claims on behalf of a putative statewide class against a company that makes fruit juices with “No Sugar Added” statements on the product labels and without a statement that the juice is not a “low calorie” or “calorie reduced” product allegedly in violation of federal regulatory requirements. Cuzakis v. Hansen Beverage Co., No. BC513620 (Cal. Super. Ct., Los Angeles Cty., filed June 27, 2013). According to the complaint, the juices are made from fruit juice concentrate and thus cannot be labeled “No Sugar Added,” and with 120 calories per reference serving greater than 30 grams (“about as much as a conventional soft drink”) must include a disclosure that they are not “low calorie.” While the plaintiff alleges that he is a diabetic and must purchase products low in sugar, he does not seek damages for personal injury; rather, he claims he would not…
Trade organizations representing the interests of cattle and pork producers and meat processors in Canada and the United States have filed a lawsuit against the U.S. Department of Agriculture (USDA), challenging country-of-origin (COOL) labeling regulations that took effect May 23, 2013. Am. Meat Inst. v. USDA, No. 13-1033 (D.D.C., filed July 8, 2013). They seek declaratory and injunctive relief, an order vacating the final rule, attorney’s fees, and costs. Explaining that meat producers and processors in the United States, Canada and Mexico have for years freely “commingled” livestock born, raised and processed across their borders, the plaintiffs allege that new requirements forcing them to “list separately, in sequence, the specific country where the animal was ‘born,’ the country where it was ‘raised,’ and the country where it was ‘slaughtered,’” will impose significant costs and entail extensive detail and paperwork for no health or safety reasons. They allege that the COOL regulations…
A federal court in California has dismissed in part and granted in part allegations in a second amended, putative class complaint filed against three food and beverage companies for alleged violations of state consumer fraud laws in the labeling claims on a plethora of products including chewing gum, juices, cookies, crackers, granola, stuffing, and cheese. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., San Jose Div., order entered June 28, 2013). Information about a previous ruling in the case appears in Issue 473 of this Update. The court dismissed with prejudice (i) the plaintiff’s claim that a “natural flavors” label on Crystal Light® is misleading because the product contains artificial flavors; the court found that the two specific ingredients alleged to be “artificial” flavors are artificial ingredients and nothing in the Food and Drug Administration regulations suggests that potassium citrate and sodium citrate are flavors; and (ii) the…
A federal court in California has dismissed as preempted certain claims filed by a putative class alleging that Unilever deceptively markets “I Can’t Believe It’s Not Butter! Spray.” Pardini v. Unilever U.S., Inc., No. 13-1675 (N.D. Cal., order entered July 9, 2013). The dismissal was without prejudice, and the plaintiff has 30 days to amend her complaint. Other claims were also dismissed without prejudice because they were not sufficiently pleaded or because the plaintiff lacked standing to assert a claim under the consumer protection laws of the other states named in the complaint. A claim for unjust enrichment was dismissed with prejudice. The plaintiff claims that the product is deceptively marketed as having “0 fat” and “0 calories” when it actually contains 771 calories and 82 grams of fat per bottle. While the product label specifies that the no-fat and no-calories claim is per serving, and users are referred to…
Maine Governor Paul LePage (R) has reportedly vetoed legislation (LD 1181) that would have required food companies with more than $1 billion in annual sales to disclose their use of priority chemicals such as bisphenol A (BPA) to the state. According to his July 8, 2013, veto letter, LePage rejected the measure for lack of funding, writing that lawmakers failed to allocate adequate resources for the program’s administration. He also noted that the bill would have established the actions of other states as “credible scientific evidence,” “regardless of whether other states use scientific analyses to reach their conclusions,” while asking Maine agencies “once again to re-visit which chemicals are considered of ‘high concern.’” “In addition, the federal government, through potential amendments to the Toxic Substances Control Act, may be exploring reasonable and consistent measures to address these concerns,” concluded LePage, who previously supported legislation designed to strengthen Maine’s Priority Chemicals…
