A federal court in California has denied in part and granted in part the defendants’ motion to dismiss putative class claims that many of their food products are sold with labels that are unlawful and/or mislead consumers. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., order entered February 25, 2013). Among the products are chewing gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell-O®, and Easy Mac®. The labels at issue include the following statements: “natural,” “all natural,” “no artificial” colors/sweeteners/flavors/preservatives/ingredients, nutrient content, health claims, “sugar free,” “sugarless,” certain serving sizes, and “evaporated cane juice.” The allegations are also apparently based on products the named plaintiff did not purchase.

The court determined that (i) the plaintiff sufficiently alleged an injury in fact by claiming she would not have purchased the products but for the alleged unlawful or misleading labels; (ii) the plaintiff cannot bring claims relating to products she did not purchase, but may amend her complaint on this point; (iii) the primary jurisdiction doctrine is inapplicable to most of the plaintiff’s claims because the Food and Drug Administration (FDA) has established clear policy on the issues, and the alleged state law violations mirror or are identical to FDA provisions; (iv) because FDA is engaged in a rulemaking on amending serving-size regulations pertaining to small breath mints, plaintiff’s claims as to Dentyne® breath mints were precluded under the primary jurisdiction doctrine; (v) most of the claims, including those based on use of the term “natural,” survive a preemption challenge, and those that do not may be amended, although package statements that the products are a “good source” of vitamins or are “wholesome” included the required referral statements and were thus expressly preempted under federal law; and (vi) claims for restitution based on unjust enrichment and warranty claims under state and federal laws had to be dismissed with prejudice as superfluous or not within the laws’ application.

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.