California Attorney General Xavier Becerra has filed a lawsuit alleging two companies' toddler formula products contain lead levels higher than U.S. Food and Drug Administration (FDA) standards. California v. Nutraceutical Corp., No. RG18907841 (Cal. Super. Ct., Alameda Cty., filed June 7, 2018). The state alleges that Sammy’s Milk Free-Range Goat Milk Toddler Formula, manufactured and sold by Graceleigh Inc., and Peaceful Planet Toddler Supreme Formula, manufactured and sold by Nutraceutical Corp., contain more than six micrograms of lead—the daily intake limit set by FDA—and fail to include lead warnings on the products' labels. Both companies purportedly market their products as "clean" and "pure." “Toddler formula should contain nutrients that help children grow, not poisonous substances that can threaten their healthy development. No parent should have to worry that the formula they purchase could endanger their child,” said Becerra in a press release. “The levels of lead we found in these formulas…
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The U.S. Court of Appeals for the Ninth Circuit has affirmed summary judgment dismissing a putative class action alleging that Twinings North America Inc.'s teas contained fewer antioxidants than claimed on product labels, holding the plaintiff had failed to establish standing. Lanovaz v. Twinings N. Am. Inc., No. 16-16628 (9th Cir., entered June 6, 2018). The court focused on the plaintiff's statement that she would not purchase Twinings tea again even if the company changed the allegedly misleading labels. To establish standing, a plaintiff must show an imminent or actual threat of future harm, the court held, and the plaintiff’s “some day intention” of professed intent, “without any description of concrete plans, or indeed even any specification of when that some day will be—do[es] not support a finding of the ‘actual or imminent’ injury.”
The California Supreme Court has affirmed an appeals court ruling holding that an assessment collected to subsidize a grapes promotional campaign is constitutional and not compelled speech. Delano Farms Co. v. Cal. Table Grape Comm'n, No. S226538 (Cal., entered May 24, 2018). The growers argued that the program required them to "sponsor a viewpoint (promoting all California table grapes equally) with which they disagree" because they "believe that the table grapes they grow and ship are exceptional." The California Table Grape Commission asserted that the program was government speech rather than private speech, resulting in no free speech violation. The court concluded that the compelled grape subsidy constituted government speech, focusing on the "governmental direction and control" of the messaging. "In sum, the Commission was created by statute and given a specific mission to, among other things, promote in a generic fashion a particular agricultural product," the court held. "In…
A federal court has dismissed a lawsuit alleging that the National List's sunset review process violates the Administrative Procedures Act. Ctr. for Food Safety v. Perdue, No. 15-1590 (N.D. Cal., entered May 24, 2018). The court found that the notice promulgating the alteration of the review process was not a final action because it did not “alter any criteria or standards for the evaluation of a particular substance." The challenge further presented ripeness issues because the harms, such as the inclusion of certain compounds in organic foods, may never materialize, the court noted. The notice does not predetermine the U.S. Department of Agriculture's (USDA's) decision to renew or remove a substance, the court held, and the plaintiffs are not precluded from later asserting harms from an “allegedly wrongful renewal. Plaintiffs must accordingly await that decision for the Court to properly review USDA’s actions,” the court concluded.
Ferrara Candy Co. has agreed to pay $2.5 million to settle a putative class action alleging its candy boxes contained an unnecessary amount of slack fill. Iglesias v. Ferrara Candy Co., No. 17-849 (N.D. Cal., motion filed May 10, 2018). Under the agreement, Ferrara will "modify its fill level quality control procedures and target fill levels to at least 75% for theater box Products, and at least 50% for bag-in-a-box Products." In addition, the company will pay $2.5 million into a common fund; class members may submit claims for an unlimited number of purchases, but recovery for claims without proof of purchase will be capped at $7.50 per member. The named plaintiff will receive an incentive award of $5,000, and attorney's fees will be capped at 30 percent of the common fund, or about $522,000.
A California appeals court has affirmed a lower court's dismissal of a lawsuit asserting that Sutter Home Winery Inc.'s wine should feature a warning about arsenic content pursuant to the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Charles v. Sutter Home Winery Inc., No. B275295 (Cal. App. Ct., 2nd Dist., entered May 9, 2018). While Sutter Home's wines feature the "safe harbor" alcohol warning pertaining to cancer and birth-defect risks, the plaintiffs argued that the labels should also reference risks associated with consuming inorganic arsenic. Failing to disclose the inorganic arsenic level, the plaintiffs asserted, amounted to a Prop. 65 violation. "Plaintiffs contend the safe harbor warning for alcoholic beverages is incomplete because it does not alert consumers to the presence of inorganic arsenic, and by this omission, the warning misleads consumers into believing their exposure is limited to a single listed chemical, alcohol," the…
A consumer has filed a putative class action alleging Trader Joe's Co. falsely advertises its Sour Gummies by failing to disclose that the product contains d-l-malic acid. Wong v. Trader Joe's Co., No. 18-0869 (S.D. Cal., removed to federal court May 4, 2018). The plaintiff asserts that under California law, "any artificial flavor must be identified on both the front-of-package label and the product ingredient list. Defendants fail to do either." According to the complaint, "Trader Joe's maintains a pervasive national marketing campaign guaranteeing that all its house-brand products are only naturally flavored," including the statement "when you see our name on a label, you can be assured that the product contains: YES quality ingredients NO artificial flavors." Alleging unfair competition, false advertising and negligent misrepresentation, the plaintiff seeks class certification, damages, corrective advertising and attorney's fees. In addition, Trader Joe's has filed a notice of opposition to an application for the…
Ruling that the plaintiff’s claims are preempted by the Organic Foods Production Act (OFPA), a federal court in California has dismissed a putative class action alleging Danone North America's Horizon Organic milk is not organic because it contains DHA. Brown v. Danone N. Am. LLC, No. 17-7325 (N.D. Cal., entered May 1, 2018). Noting that the Ninth Circuit has not considered whether the OFPA preempts state law challenges that "call into question whether organic products were properly certified as organic,” the court sided with decisions from the Eighth and Second Circuits holding that such challenges are preempted. “The labels clearly state that the milk is 'organic' and that the milk contains DHA, and the labels bear the United States Department of Agriculture (USDA) organic certification logo," the court found. "The USDA database publicly shows that Horizon Organic milk with DHA is currently certified organic by the USDA, and has been…
Plaintiffs in California and New York have filed a putative class action alleging Clif Bar & Co. “omits, intentionally distracts from, and otherwise downplays" the "high added sugar content” of Clif Classic and Clif Kid bars. Milan v. Clif Bar & Co., No. 18-2354 (N.D. Cal., filed April 19, 2018). The complaint asserts that the bars contain high amounts of added sugar—“a chronic liver toxin”—and alleges that excess sugar consumption can lead to several conditions, including metabolic syndrome, Type 2 diabetes, obesity, high triglycerides and hypertension. The plaintiffs allege that Clif “employs a strategic marketing campaign intended to appeal to customers interested in healthful foods in order to increase sales and profits, despite that the high-sugar bars are detrimental to health.” By emphasizing “nutritious” and “organic” ingredients as well as the lack of high-fructose corn syrup and genetically modified organisms, the company allegedly fails to disclose that Clif Classic and…
The maker of Jack Daniel’s has filed suit against two Texas companies alleging they infringed the Tennessee whiskey’s trademark and trade dress by selling a line of whiskies in similarly shaped bottles with similar labeling. Jack Daniel’s Props., Inc., v. Dynasty Spirits, Inc., No. 18-2400 (N.D. Cal., filed April 20, 2018). The complaint alleges that Tennessee whiskey has been sold under the Jack Daniel’s mark “continuously since 1875, except during Prohibition” and is sold in a “square bottle with angled shoulders, beveled corners, and a ribbed neck, a black cap, a black neck wrap closure with white printing bearing the OLD NO. 7 mark, and a label with a white on black color scheme bearing the JACK DANIEL’S mark depicted in arched lettering at the top of the label [] and the word ‘Tennessee’ depicted in script.” The competitor whiskies “all feature a square bottle with angled shoulders, beveled corners…
