A federal court in California has determined that some putative class claims can proceed against a company that allegedly makes false and misleading statements about its guacamole and spicy bean dip products. Henderson v. Gruma Corp., No. 10-04173 (C.D. Cal., decided April 11, 2011). The plaintiffs’ first amended complaint alleged five causes of action for violations of the state’s unfair competition and false advertising laws and the Consumer Legal Remedies Act. They claimed that the statements “0 g trans fat,” “with garden vegetables,” made in “the authentic tradition,” “0 g cholesterol,” and “all natural,” as to either or both products were false and misleading. The court first determined that the named plaintiffs, including a woman who recently brought and voluntarily dismissed similar claims against Hostess Brands, Inc., adequately alleged injury-in-fact to establish standing under Proposition 64. They alleged that they (i) “paid more for Mission Guacamole and Mission Bean Dip,…
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According to public health lawyer and activist Michele Simon, who recently attended a meeting in Brussels “to address the problem of cross-border marketing of unhealthy food to children,” the same types of issues confronting public health advocates in the United States confront their counterparts in Europe. Regulatory standards are apparently under development, but Simon did not share the details because they are still in draft and the meeting was closed to the public. She did, however, discuss a presentation by an industry representative who apparently outlined voluntary efforts that food and beverage companies have undertaken in Europe to decrease the number of TV ads children are exposed to. Simon questioned the effectiveness of these efforts and industry’s transparency, noting that the messages companies are delivering to children in other ways, such as the Internet, are not apparently being tracked. Simon also provided a summary of the Federal Trade Commission’s update…
Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.” Information about a similar case filed in…
A federal court in California has reportedly fined King Tuna $1.8 million for marking its products with a patent number despite not following the patented process in preparing its fish. King Tuna v. Anova Food, Inc., No. 07-07451 (C.D. Cal., decided February 24, 2011). The patent apparently related to pre-cooling filtered wood smoke before applying it to tuna. King Tuna sued a competitor alleging that the patent had been infringed; the competitor countersued claiming, among other matters, that King Tuna had falsely advertised and falsely marked its products. While most recent litigation involving the false-marking statute involves expired patents, this case apparently involved a valid patent. According to the court, King Tuna’s false advertising and marking “could not have been a mere innocent oversight,” because the company, while claiming that its preservation process involved filtered wood smoke, never pre-cooled the wood smoke “as required by the “619 patent.” To determine…
The Arizona House of Representatives Commerce Committee has reportedly approved a bill (H.B. 2490) that would block cities and counties from enacting laws that would prohibit restaurants, food establishments or convenience stores from offering “consumer incentive items” with meals. Scheduled to go before the House for a full vote, the law identifies the items as “any licensed media character, toy, game, trading card, contest, point accumulation, club membership, admission ticket, token, code or password for digital access, coupon, voucher, incentive, crayons, coloring placemats or other premium or prize or consumer product.” Telling a news source that “government needs to stay out of the way of free enterprise,” Representative Jim Weiers (R-Glendale) challenged arguments that toy giveaways tied with high-fat, high-calorie meals contributed to childhood obesity. “Ask the parents who are supposed to be ultimately responsible,” he said. But House Minority Leader Chad Campbell (D-Phoenix) asserted that the issue should be…
The parties to obesity-related litigation, brought on behalf of several teenagers against fast-food giant McDonald’s Corp. in 2002, have filed a stipulation of voluntary dismissal with prejudice. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., stipulation filed February 25, 2011). The action followed entry of an order in December 2010 scheduling pretrial discovery and motions filing and briefing for the individual claims remaining in this putative class action. A court refused to certify the action as a class in October. Pelman was closely watched by industry and consumer advocates as it made several trips before the Second Circuit Court of Appeals that ultimately narrowed the issues for trial. It was expected to be groundbreaking litigation that would allow access to industry documents which plaintiffs’ interests believed could be used to bring a flood of litigation against companies they blame for the nation’s increasing incidence of obesity. The experience of litigators opposing…
According to media sources, documentarian Morgan Spurlock recently screened his latest film about advertising and product placement at the 2011 Sundance Film Festival, with plans for a general audience release in April 2011. Best known for “Super Size Me,” a film critical of the fast-food industry, Spurlock’s “POM Wonderful Presents: The Greatest Movie Ever Made” apparently “unmasks the marketing process to bring audiences behind closed doors directly into the pitch meetings and marketing presentations which ultimately inform our everyday entertainment decisions,” according to a press release issued by film sponsor POM Wonderful®. Financed entirely by product placement, the film reportedly explores the world of co-promotion “with humor and insight,” although Advertising Age also noted a focus on “advertising’s wrongs,” such as “the marketers’ hooks in children,” and new techniques such as neuromarketing. “I felt the best way to examine the ever-growing debate of brand integration in film and television was…
A California resident who purportedly bought the hazelnut spread Nutella® to provide a nutritious snack or breakfast for her 4-year-old daughter has filed a putative class action against its manufacturer alleging violations of consumer protection laws. Hohenberg v. Ferrero U.S.A., Inc., No. 11-0205 (S.D. Cal., filed February 1, 2011). Seeking to represent a nationwide class of consumers who purchased the product since 2000, Athena Hohenberg claims that she relied on the company’s product advertisements and representations that Nutella® is a “healthy breakfast” and “nutritious.” According to the complaint, she did not learn until December 2010 “through friends what ingredients were in the Nutella® that she was feeding her family. She was shocked to learn that Nutella® was in fact not a ‘healthy’ ‘nutritious’ food but instead was the next best thing to a candy bar,” containing “about 70% saturated fat and processed sugar by weight.” Characterizing herself as a “reasonably…
According to a press report, the World Health Organization (WHO) has announced that heads of state convening at the United Nations (U.N.), September 19-20, 2011, will use the U.N. General Assembly meeting to discuss restrictions on advertising foods of poor nutritional quality to children. WHO estimates that 43 million preschool children worldwide are overweight or obese, and some refer to the problem as a “fat tsunami,” responsible for millions of premature deaths annually. Norwegian Directorate of Health representative Bjorn-Inge Larsen reportedly indicated that he expects voluntary restrictions on junk food advertising to be adopted as laws that will ultimately ban the practice, similar to the way tobacco was addressed. See The Associated Press, January 21, 2011.
The Federal Trade Commission (FTC) has announced that final approval was given to a settlement reached with a Nestlé S.A. subsidiary over claims that its children’s drink, BOOST Kid Essentials®, conferred specific health benefits, such as reducing the risk of colds and flu and reducing the duration of acute diarrhea. More information about the settlement appears in Issue 356 of this Update. And the summary of a related lawsuit that the National Consumers League filed against the company can be found in Issue 360 of this Update. The FTC said that this case was the agency’s “first one challenging advertising for probiotics.” See FTC News Release, January 18, 2011.
