A California federal court has granted preliminary approval to the proposed settlement of a lawsuit alleging Keurig Dr Pepper Inc. and Canada Dry Mott's Inc. misled consumers into believing that Canada Dry Ginger Ale was "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered January 10, 2019). Under the settlement agreement, the company will pay $0.40 per product unit to class members, with a maximum of $40 for those with proof of purchase and $5.20 for those without. The plaintiff's attorneys may apply for up to $2.25 million in attorney's fees, and the class representative will receive $5,000.
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Following a California settlement, Amazon has reportedly agreed to stop selling foie gras produced from force-fed ducks and geese. The settlement between the company and Los Angeles County stems from a lawsuit alleging that Amazon violated a 2004 California law banning the sale of the products. Under the agreement, Amazon will not sell—or allow its third-party sellers to offer for sale—force-fed foie gras in California for five years. A lawsuit seeking to invalidate the ban awaits a ruling on certiorari from the U.S. Supreme Court after the Ninth Circuit found that the statute was not preempted by the Poultry Products Inspection Act.
A Los Angeles councilperson has reportedly introduced a motion that would require entertainment venues and other establishments to offer at least one “vegan protein option” in an effort to combat climate change. The motion cites “several studies which suggest a link between the meat and dairy industry and the environment, including a University of Oxford study that found if more people in the United States adopted plant-based eating it could cut greenhouse-gas emissions from food sources by 70 percent,” according to CBS Los Angeles. The proposal would hold city departments accountable for offering vegan options at city-operated venues such as zoos and parks.
A California federal court has partially certified a class of consumers that alleges Ocean Spray Cranberries Inc. misled them into believing that their products were free of artificial flavoring but contained malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered November 29, 2018). The court first found that the proposed class met the requirements of typicality, numerosity, commonality and adequacy of the class representative before focusing on the predominance issue for the breach of express warranty and breach of implied warranty allegations. The plaintiff asserted that damages for those allegations could be determined with a survey that apparently identified the price premium that consumers would pay based on the "no artificial flavors" representation. Ocean Spray argued that the "proposed damages model is fatally flawed" because of the use of "diverse comparative products, retailing concepts, juice percentages and an irrelevant specific time period," and the court agreed,…
A California federal court has denied a motion to dismiss a lawsuit alleging that Sanderson Farms Inc. misleads consumers about the presence of antibiotics in its chickens. Friends of the Earth v. Sanderson Farms Inc., No. 17-3592 (N.D. Cal., entered December 3, 2018). The plaintiffs—several advocacy groups—assert that Sanderson's marketing misleads consumers into believing that its chickens are raised without antibiotics, while Sanderson argues that its labeling, advertisements and website communicate to consumers that the chicken products they purchase do not contain antibiotics. "Sanderson argues its infographic on its '100% Natural' webpage contains only true statements: it shows what ingredients are not added to the chicken and says nothing about antibiotic use or nonuse," the court stated. "Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded. As…
Plaintiffs represented by the same plaintiff's firm have filed lawsuits alleging that companies mislead consumers by labeling their foods as flavored naturally despite containing malic acid. Lepiane v. Utz Quality Foods LLC, No. 18-2659 (S.D. Cal., filed November 20, 2018); Augustine v. Talking Rain Beverage Co., No. 18-2576 (S.D. Cal., filed November 9, 2018). The plaintiffs who filed against Utz Quality Foods allege that the company's Dirty Salt & Vinegar Potato Chips are labeled as containing "no artificial flavors" but list malic acid as an ingredient. "This type of 'malic acid' is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts," the complaint argues. The complaint against Talking Rain Beverage Co. makes identical allegations. Both complaints allege violations of California consumer-protection statutes and seek…
A consumer has filed a putative class action alleging that Vivaloe beverages are misleadingly marketed as naturally flavored because they contain malic acid. Anderson v. Outernational Brands Inc., No. 18-2550 (S.D. Cal., filed November 6, 2018). The complaint asserts that malic acid is "an inexpensive synthetic chemical used in processed food products to make the products taste like tangy fresh fruits" that "is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff admits that malic acid is generally recognized as safe for use as flavorings but argues that the d-malic form of malic acid "has never been extensively studied for its health effects in human beings." The plaintiff alleges violations of California consumer-protection statutes and seeks class certification, damages, attorney's fees and…
A California federal court has granted partial summary judgment in a class action alleging Keurig Dr Pepper falsely marketed Canada Dry as "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered November 2, 2018). The court considered the results of multiple consumer surveys aiming to determine whether a reasonable consumer would interpret "Made from Real Ginger" as describing a product that is made from ginger root or a product that is made from ginger oleoresin, a flavoring made from ginger root. The surveys determined that some respondents were confused about the source of the ginger flavor based on Canada Dry's marketing. Finding that an issue of material fact remains, the court denied the motion for summary judgment on that claim. The court then turned to allegations about whether Dr Pepper misled consumers about the levels of ginger in the product. "The label makes no…
A consumer has filed a putative class action alleging that Mott's Applesauce and Apple Juice products are mislabeled as "natural" because they contain traces of an insecticide. Yu v. Dr Pepper Snapple Grp. Inc., No. 18-6664 (N.D. Cal., San Jose Div., filed November 1, 2018). The plaintiff alleges that reasonable consumers would not expect to find acetamiprid, a synthetic chemical, in a product labeled as "natural." The complaint echoes a similar lawsuit filed by Beyond Pesticides in May 2017; an amended complaint in that lawsuit was filed in October 2018.
A California federal court has refused to dismiss a putative class action alleging Ocean Spray Cranberries Inc. misled consumers by marketing its products as free from artificial flavors despite containing malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered October 30, 2018). Ocean Spray moved to dismiss the allegations, arguing that "malic and fumaric acids do not function as flavors in their juice products but instead are acidulants used to control the pH and titratable acid levels in their juices." Ocean Spray presented testimony from its vice president of research, development, quality and engineering, who asserted that changing the amount of malic and fumaric acids in the product would not change the flavor but may "create a perceptible difference in mouth feel of the product." The plaintiff's expert, a food scientist, argued that the "small quantity of synthetic malic acid in the Cran-Apple juice drink" would…
