Tag Archives California

A consumer has alleged that The Kroger Co. misleads with its packaging for sparkling water products sold with flavors such as "Black Cherry," "White Grape" and "Kiwi Strawberry" because the waters are purportedly flavored artificially rather than with extracts of the fruits. Gammino v. Kroger Co., No. 21-2933 (N.D. Cal., filed April 22, 2021). The complaint asserts that Kroger's "packaging, labeling, and advertising scheme for these Products is intended to give consumers the impression that they are buying a premium, all-natural product instead of a product that is artificially flavored." The plaintiff asserts that the flavoring in the beverages comes from malic acid, "a synthetic chemical manufactured in a petrochemical factory from petroleum feedstocks." The complaint lists several causes of action, including alleged violations of Ohio and California's consumer-protection statutes as well as fraud by omission, negligent misrepresentation and money had and received.

The National Organic Program can continue to include foods grown through hydroponics following a ruling from a California federal court holding that the U.S. Department of Agriculture (USDA) acted reasonably in concluding that the statutory scheme does not exclude hydroponics. Ctr. for Food Safety v. Perdue, No. 20-1537 (N.D. Cal., entered March 18, 2021). The Center for Food Safety (CFS) had sought to limit foods labeled as "organic" to only foods grown in soil, but the USDA denied the advocacy group's petition. "The petition denial should not be disturbed because USDA reasonably defends its determination that [the Organic Foods Production Act (OFPA)] does not compel the prohibition of hydroponics," the court held. "USDA’s ongoing certification of hydroponic systems that comply with all applicable regulations is firmly planted in OFPA. It therefore provides the 'reasonable explanation' required on review, so its denial will not be vacated."

A California federal court has ruled that the state "has not shown that the cancer warnings it requires are purely factual and uncontroversial" or "that Proposition 65 imposes no undue burden on those who would provide a more carefully worded warning." Cal. Chamber of Com. v. Becerra, No. 19-2019 (E.D. Cal., entered March 29, 2021). The California Chamber of Commerce filed a lawsuit seeking to enjoin new lawsuits from enforcing the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) against foods that contain acrylamide. The court considered evidence on the toxicity of acrylamide, finding that "some evidence does support such an inference" that eating food with acrylamide will increase a person's risk of cancer, but "dozens of epidemiological studies have failed to tie human cancer to a diet of food containing acrylamide. Nor have public health authorities advised people to eliminate acrylamide from their diets. They have at most…

The California Office of Environmental Health Hazard Assessment (OEHHA) has announced that it intends to add perfluorooctanoic acid (PFOA) to the list of substances known to cause cancer or reproductive harm under the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). PFOA, known as a "forever chemical," can be found in nonstick surfaces and food packaging, among other items. OEHHA will accept comments on the determination until May 3, 2021.

A California appeals court has declined to revive a lawsuit alleging that packaging for Foster Poultry Farms Inc. products misleads consumers by featuring a certification that the animals are treated humanely. Leining v. Foster Poultry Farms Inc., No. B291600 (Cal. App. Ct., 2nd Dist., entered February 23, 2021). The plaintiff had alleged that she believed the logo to indicate that the animals were treated humanely according to a reasonable consumer's standard rather than according to the industry's standards; the trial court granted Foster Farms summary judgment, finding that the American Humane Association's certification program was "independent, reasonable, and involved some level of expertise." The appeals court found that the plaintiff's causes of action were preempted by the Poultry Products Inspection Act (PPIA) because the labels were preapproved by the Food Safety and Inspection Service. If the plaintiff "were to prevail on her tort claims that the labels were nonetheless misleading,…

A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.

A California federal court has denied a motion to dismiss an advocacy group lawsuit brought against the U.S. Department of Agriculture (USDA) challenging the implementation of the Food Safety and Inspection Service's New Swine Inspection System (NSIS). Ctr. for Food Safety v. Perdue, No. 20-0256 (N.D. Cal., entered February 4, 2021). The plaintiffs, several advocacy groups including the Center for Food Safety and Food & Water Watch, argued that the rule change violated the Administrative Procedure Act. The court found that the plaintiffs could reasonably argue a "credible threat," a standard in threatened environmental harm cases that "also applies to food safety cases such as this one." "Here, Plaintiffs allege that the new NSIS procedures outlined in the Final Rule erode several important features of the traditional inspection process increasing the likelihood that adulterated pork products will enter the food supply and thus putting their members at risk of illness…

California Attorney General Xavier Becerra filed a lawsuit against five importers, wholesalers and distributors of seafood, alleging they sell fish with levels of cadmium and lead high enough to require warnings governed by the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). California v. Pacific Am. Fish Co. Inc. (Cal. Super. Ct., filed December 28, 2020). The companies—Pacific American Fish Company, Rhee Bros., Seaquest Seafood Corporation, Jayone Foods and Clearwater Seafoods—sell products such as clams, mussels, octopus, oysters, squids and snails. “When California's consumers, restaurants, and supermarkets purchase seafood, they shouldn’t have to worry about whether the products they’re buying contain toxic chemicals,” Becerra said in a press release. “The seafood industry has a responsibility to ensure the safety of its products – and to warn consumers of any risks. I hope this lawsuit serves as a warning to any company that might skirt its responsibilities under Proposition 65. The California…

A putative class action has alleged that Subway Restaurants Inc. sells tuna products that "do not contain any tuna nor have any ingredient that constitutes tuna"—the products "are completely bereft of tuna as an ingredient," according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). "As independent testing has repeatedly affirmed, the Products are made from anything but tuna," the complaint asserts. "On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as 'tuna' to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as 'tuna.'" The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs…

Two consumers allege that Hawaiian Host Candies, "synonymous with Hawaii," are made in Gardena, California.  Toy v. Hawaiian Host Candies of L.A. Inc., No. 20-2191 (C.D. Cal., filed November 17, 2020). "Had Plaintiffs and other consumers known that the Hawaiian Host Products are not made in Hawaii, they would have paid significantly less for them, or would not have purchased them at all," the complaint alleges. The plaintiffs assert that the candy packaging intentionally misleads consumers with the candy name as well as statements such as "Hawai'i's Gift to the World," "Hawaiian Host products are made with aloha" and "Our classic confections reflect our deep connection to Hawai'i and are meant to be shared with others in the true spirit of Aloha." The packaging also includes the name of Hawaiian Host Inc. and a Honolulu address. As further evidence, the complaint cites the company's social media feeds, which share images of…

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