Alabama and Indiana residents have filed a putative class action alleging violation of state consumer protection laws by a company that promotes its orange juice as “not from concentrate juice” and “100% pure Florida squeezed,” when it allegedly “contains orange juice concentrate and water.” Leftwich v. TWS Mktg. Group, Inc., No. 11-01879 (D. Ala., filed June 2, 2011). Seeking to certify a nationwide class of consumers, the plaintiffs refer to a Food and Drug Administration letter warning the defendant that its labeling violated the Federal Food, Drug, and Cosmetic Act. The plaintiffs contend that they were misled by the product labeling and that the alleged misrepresentations were a substantial factor in influencing their decisions to purchase the products. They allege a loss of money, because they were “deprived of the benefit of their bargain.” The plaintiffs allege violations of consumer protection laws, breach of express warranty and unjust enrichment. Claiming…
A New York bakery and its shareholder have filed a trademark infringement action against the Food Network, claiming that its proposed “Tough Cookies” show would confuse consumers. One Tough Cookie, Inc. v. Scripps Networks Interactive, Inc., No. 11-03675 (S.D.N.Y., filed May 31, 2011). According to the complaint, the Food Network has adopted “Tough Cookies” as the name of a “reality” TV series that will air in July 2011. It is apparently based on a “specialty bakery in New Jersey” called Crazy Susan’s Cookie Co. The plaintiffs allege that they are nationally known for “concentrating in ‘edible art’ in the form of cakes, cookies, and other pastries and baked goods” and registered their One Tough Cookie® mark in 2006. The plaintiffs also allege, “Each time the ‘Tough Cookies’ television show airs, plaintiffs’ website and web server will be compromised due to television fans attempting to find the ‘Tough Cookies’ television show…
A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 (N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied. Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If…
Minnesota Governor Mark Dayton (D) has vetoed legislation (House File 264/ Senate File 160) aimed at giving fast-food chains civil immunity if consumers gain weight after consuming their products. “Unfortunately, this bill provides to companies that manufacture, distribute, or sell food and nonalcoholic beverages civil immunity, except for: ‘any other material violation of federal or state law applicable to the manufacturing, marketing, distribution, advertising, labeling, or sale of food, if the violation is knowing and willful,’” Dayton said in his May 27, 2011, veto. “That requirement of being ‘knowing and willful’ creates too broad an exemption from liability, according to legal experts with whom I consulted.”
University of Missouri scientists have reportedly published the first study to examine “serum BPA [bisphenol A] concentrations in an animal model exposed to this chemical via the diet,” as opposed to oral bolus exposure. Paizlee Sieli, et al., “Comparison of Serum Bisphenol A Concentrations in Mice Exposed to Bisphenol A through the Diet Versus Oral Bolus Exposure,” Environmental Health Perspectives, June 6, 2011. After comparing BPA serum concentrations in adult female mice after oral bolus administration or ad libitum feeding, researchers concluded that bolus administration “underestimates bioavailable serum BPA concentrations in animals and therefore, presumably humans than would result from dietary exposure.” According to the study, these results suggest that “exposure via diet is a more natural continuous exposure route than oral bolus exposure, and thus, a better predictor of BPA concentrations in chronically exposed animals and humans.”
Food & Water Watch has issued a report cautioning that potentially unsafe food from China may likely provide the next food safety scare in the United States. Titled “A Decade of Dangerous Food Imports from China,” the report describes “where [Chinese] food manufacturers are legendary for cutting corners, substituting dangerous ingredients, and compromising safety in order to boost sales.” Noting that U.S. food safety oversight has “not remotely” kept pace with China’s food exports that have tripled over the past decade, the report recommends (i) “revisiting the current trade agenda to make public health, environmental standards and consumer safety the highest priorities”; (ii) “removing agriculture from the WTO” (World Trade Organization), which “has been a failure for U.S. farmers and has encouraged companies to offshore food manufacturing to places like China with low wages and weak regulatory standards, putting consumers around the world at risk”; (iii) “restarting the assessment of…
The American Academy of Pediatrics (AAP) has issued a report warning that children and adolescents should not consume energy drinks because the beverages “pose potential health risks.” Titled “Sports Drinks and Energy Drinks for Children and Adolescents: Are They Appropriate?”, the report appears in the June 2011 issue of Pediatrics. Sports drinks and energy drinks are not the same, the report says, noting that sports drinks contain carbohydrates, minerals, electrolytes, and flavoring intended to replace water and electrolytes lost through sweating during exercise. “Sports drinks can be helpful for young athletes engages in prolonged, vigorous physical activities, but in most cases they are unnecessary on the sports field or the school lunchroom,” according to the report. Energy drinks, however, “are never appropriate for children or adolescents,” and should be avoided because they contain stimulants, such as caffeine, guarana and taurine, the report says. “Caffeine—by far the most popular stimulant—has been…
A federal judge in Florida has reportedly granted a motion for permanent injunction in a trademark infringement case involving two “never-ending” restaurant promotions. According to media sources, Darden Concepts Inc., which owns Olive Garden and Red Lobster, filed an October 2010 complaint alleging that a TGI Friday Inc. franchisee with outlets in seven states had infringed on its “never-ending pasta” and “all you can eat” shrimp slogans by advertising a “never-ending shrimp” deal. Under terms of the settlement, TGI Friday’s must halt its “never-ending” promotion, which evidently ran as 630 TV spots in anticipation of a national campaign. See Law360, June 6, 2011.
More than 200 farm workers from Ecuador, Panama and Costa Rica have reportedly filed seven lawsuits against commercial banana growers and pesticide manufacturers, seeking to recover damages and medical monitoring costs for health conditions allegedly related to dibromochloropropane (DBCP) exposure. Aguilar v. Dole Food Co., Inc., No. __ (E.D. La., filed June 1, 2011). The complaints argue that defendants used DBCP from approximately 1960 to 1985—“and possibly into the 1990s”—in banana growing regions outside the United States, which banned the nematocide in 1979 after the Environmental Protection Agency (EPA) listed it as a suspected carcinogen. Plaintiffs claim that because they were not informed of the danger or provided with protective clothing, they injected DBCP into soil without the use of gloves, protective covering or respiratory equipment to prevent skin absorption or inhalation. “Many workers absorbed so much DBCP each day that their urine would give off the smell of the chemical…
A federal judge in California has granted class certification in a suit alleging that Diamond Foods, Inc. misbranded its shelled walnut products and misled consumers by using “express and implied statements about the positive effects of omega-3 fatty acid consumption on health.” Zeisel v. Diamond Foods, Inc., N0. 10-01192 (N.D. Cal., decided June 7, 2011). The labels at issue apparently featured a heart symbol banner with the phrase “Omega 3 2.5 g per serving” and a structural claim about the omega-3 in walnuts, as well as a qualified health claim approved by the Food and Drug Administration (FDA). After FDA issued a February 2010 warning letter about these so-called combination claims, a consumer filed a complaint alleging that Diamond used language not authorized by FDA and that its products “did not provide the health benefits that were claimed on the package labels.” Plaintiff then moved to certify a class of all…
