The Beech-Nut Nutrition Co. has filed a complaint against an organic baby-food maker seeking a declaration that Beech-Nut has not infringed any of Plum PBC’s trademarks and that the trademarks Plum has asserted to the word “JUST” and certain phrases are invalid. Beech-Nut Nutrition Co. v. Plum PBC, No. 14-0791 (N.D.N.Y., filed June 30, 2014). According to the complaint, Plum sent Beech-Nut a cease-and-desist letter in June 2014 shortly after Beech-Nut launched a new line of whole fruit and vegetable foods for babies including the word “just” on product labels and advertised them under a promotional campaign “This is not baby food” and “This is real food for babies.” The letter allegedly demanded that Beech-Nut stop infringing Plum’s “JUST” trademark and using the promotional phrases. Beech-Nut contends that (i) the word “just” is simply descriptive and generic; (ii) Plum does not use the trademark symbol beside the word on its product…
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A federal court in New Jersey has denied without prejudice the motion to certify three classes of multi-state claimants alleging that Beam Global Spirits & Wine falsely markets and sells its “Skinnygirl Margarita” product as “all natural” and a “healthy alternative to other commercial Margarita products.” Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (U.S. Dist. Ct., D.N.J., order entered June 26, 2014). Under Third Circuit Court of Appeals precedent, the court determined that class membership, essentially via affidavit relying on potentially faulty memory, was not sufficiently ascertainable. The plaintiffs will have the opportunity to renew their motion at any appropriate time “specifically taking into account the rulings in Marcus, Hayes, and Carrera.” Among other matters, the court rejected the plaintiffs’ claim that the affidavits could be cross-checked using social media—for example, the “likes” or comments on the defendants’ Skinnygirl Facebook pages, or the companies’ consumer email records—or…
A federal magistrate in Florida has denied the plaintiffs’ request in multidistrict litigation challenging marketing claims that DHA Omega-3-fortified milk supports brain health to reconsider an earlier order excluding the testimony of their expert. In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., MDL No. 2324 (S.D. Fla., order entered June 17, 2014). Details about the magistrate’s ruling excluding the plaintiffs’ expert appear in Issue 522 of this Update. The magistrate rejected the plaintiffs’ arguments for their failure to raise them when the motion to exclude the evidence was before him and determined that an intervening U.S. Food and Drug Administration final nutrient content rule on DHA is not new evidence and does not address the ground on which the magistrate struck the expert—his failure to show how the studies on which he relied could be extrapolated to cover the broad class of product purchasers. Issue…
The Yale Rudd Center for Food Policy and Obesity has released a new brief updating its annual report on trends in TV food advertising to young people. Documenting changes “in the total number of food-related TV ads viewed by children and adolescents from 2002 to 2013,” the brief concludes that despite the Children’s Food and Beverage Advertising Initiative (CFBAI), “the total number of food and beverage ads viewed by children has increased by 8% and advertising to adolescents increased 25% since 2007.” Although youth exposure to food-related TV ads apparently peaked in 2004, Rudd Center alleges that the number of food- and beverage-related TV ads viewed by children younger than age 12 has only increased since companies adopted CFBAI in 2007. According to the brief, TV ads for fast-food restaurants represented 23 percent of food-related ads viewed by children and 28 percent of ads viewed by adolescents in 2013. In…
The U.K. Advertising Standards Authority (ASA), has upheld four complaints challenging whether a TV ad for Bioglan “superfood” chia and flax seeds complied with the European Register of Nutrition and Health claims with its use of the word “superfood” and comparisons demonstrating the seeds’ protein, calcium and fiber content. At issue specifically was food manufacturer PharmaCare’s claim that adding its chia and flax seeds to breakfast provides “as much protein as a small egg; more calcium than 100 ml of milk; as much fiber as a cup of oats; and a high source of the Omega 3 fatty acid ALA.” Concluding that although PharmaCare was within its rights to present the seeds as sources of the specific nutrients, the multiple references to “superfood” to reference “a general, non-specific benefit of the food for overall health,” needed to be accompanied by a specific authorized health claim. “We noted that the Regulation…
A California state trial court has approved the settlement agreement in a class action against Innovative Dining Group LLC (IDG), owner of the Boa Steakhouse and Sushi Roku chains, alleging that the restaurants falsely advertised their menu as containing Kobe beef. Hall v. Innovative Dining Grp. LLC, No. BC493144 (Cal. Super. Ct., Los Angeles Cty., motion granted May 30, 2014). Plaintiffs claimed that using the term “Kobe beef” implies that the beef came from Wagyu cattle raised and slaughtered in the Kobe region of Japan, but IDG’s restaurants advertised Kobe beef on their menus even while the U.S. Department of Agriculture banned beef imports from that region from May 2010 to August 2012. While admitting no wrongdoing, IDG has agreed to issue $20 gift certificates to customers who can prove that they purchased a Kobe beef menu item, $10 gift certificates to any class member who submits a claim, and…
The U.K. Advertising Standards Authority has reversed an earlier decision upholding two complaints alleging that Heineken UK Ltd.’s print and TV advertisements gave the impression that its Kronenbourg 1664 beer was brewed in France and made primarily from French hops, despite text disclaimers stating that the product was “Brewed in the UK.” According to ASA, Heineken argued that Kronenbourg 1664 “could correctly and reasonably be described as a ‘French beer’ because of its heritage, the origin of its recipe and the use of the Strisselspalt hop, as well as its ownership and the yeast type used.” In particular, the company noted that the aromatic Strisselspalt hop— though not the sole hop used in the beer—was the key ingredient in creating the beer’s final character and taste, attributes that could not be captured “from a simple calculation of the proportion in which [the Strisselspalt hop] featured in the recipe.” In its…
Researchers in the Netherlands have reportedly identified a link between computer games with food advertisements and higher calorie consumption in children, especially among those identified as impulsive. Frans Folkvord et al., “Impulsivity, ‘Advergames,’ and Food Intake,” Pediatrics, May 5, 2014. The study of 261 children aged seven to 10 assessed them for impulsivity, and then they played a matching game with branded content—an “advergame”— of either a candy brand or a toy brand. While the children were allowed to eat candy during play, half of each group playing each game was told that they would be rewarded for refraining from eating. The researchers observed the children for five minutes and measured their food intake. Overall, the children playing the game with the candy brand ate more than the group playing the toy-branded game, but most of the children who were promised rewards for not eating the candy consumed fewer calories…
U.S. Sens. Tom Harkin (D-Iowa) and Richard Blumenthal (D-Conn.) have introduced a bill that would end a tax subsidy for the marketing of food and beverages of poor nutritional quality to children. The “Stop Subsidizing Childhood Obesity Act” would also shift the money saved from eliminating the tax credit to the U.S. Department of Agriculture’s Fresh Fruit and Vegetable Program, which provides fruit and vegetable snacks to elementary school students in low-income schools. Under the current tax code, companies can deduct marketing and advertising expenses from their income taxes. “Our nation is facing a childhood obesity crisis that demands our urgent attention, and one effective way of combating this epidemic is to ensure that our children are not confronted by persistent advertising from soda, snack, and candy makers,” said Harkin. “Given the enormous public health costs associated with childhood obesity, our bill promotes healthier lifestyles.” Sen. Blumenthal said, “This measure makes…
Two consumers have filed a putative class action against dairy cooperative Darigold Inc., a subsidiary of Northwest Dairy Association, for false advertising and fraud by concealment, alleging that the company misrepresented the conditions in which its milk is produced. Ruiz v. Darigold Inc., No. 14-2054 (N.D. Cal., May 5, 2014). Yesenia Ruiz and Fernando Dorantes argue that they would not have purchased Darigold’s products if they had known about the purportedly poor conditions in which its employees work and its cows are milked. According to the complaint, Darigold employees are denied drinkable water, break periods and lunch rooms, and some of its cows are sick and injured but are milked anyway. The plaintiffs also assert claims under California’s Unfair Competition Law; the unjust enrichment laws of California, Washington and Oregon; Washington’s Consumer Protection Act; and Oregon’s Unlawful Trade Practices Act. Issue 523
