A consumer has filed a putative class action against the manufacturers of Rachael Ray’s dog foods, alleging that the products are labeled as “natural” despite containing artificial or synthetic chemicals. Grimm v. APN, Inc., No. 17-0356 (C.D. Cal., filed February 28, 2017). The plaintiff claims that she only bought the dog foods, sold under the Nutrish , Dish, Zero Grain and Just 6 labels, because they were labeled as natural and free of preservatives and would have purchased other products had she known the foods contained “artificial preservatives and unnatural ingredients.” The plaintiff alleges the defendant manufacturers “capitalized” on consumer preferences for natural food products. The product labels indicate that the dog foods contain L-ascorbyl-2 polyphosphate, menadione sodium bisulphate complex, thiamine mononitrate, and caramel color. For alleged negligent representation, violations of California’s Legal Remedies Act, False Advertising Law and Unfair Competition Law, breach of warranties and quasi-contract, the plaintiff is…
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A consumer has filed a putative class action against Ferrara Candy Co. claiming that its packaging of Jujyfruits and other candies misleads consumers by misrepresenting the amount of candy contained in each box. Iglesias v. Ferrara Candy Co., No. 17-0849 (N.D. Cal., filed February 21, 2017). The plaintiff claims that Ferrara “shortchanges consumers” by underfilling its opaque candy boxes. In movie theaters, where boxed candies are sold, the boxes are kept behind glass showcases, the complaint asserts, and consumers have no opportunity to examine net weight, serving disclosures or other labeling until after paying for the candy. Moreover, the plaintiff claims that consumers’ purchasing decisions are heavily dependent on product packaging and that “consumers are apt to choose the larger box because they think it’s a better value.” The action includes other candy lines manufactured by Ferrara, including Lemonhead , RedHots , Chuckles , Brach’s and Atomic Fireball products. For…
A California-based seafood company has reportedly been sentenced in federal court for knowingly selling mislabeled frozen fish fillets. United States v. Seafood Solutions, Inc., No. 11-297 (C.D. Cal., sentencing February 6, 2012). Seafood Solutions, Inc. agreed to plead guilty to the charge in July 2011, as part of a federal investigation into companies that had been selling Asian catfish imports under other labels to avoid anti-dumping duties. Under the terms of the agreement, the company was fined $700,000 and will pay an additional $300,000 to the National Fish and Wildlife Foundation. Two California men also pleaded guilty in connection with the scam and are apparently scheduled for sentencing on February 12, 2012. See Law360, February 7, 2012.
A consumer has filed a projected class action against Tradewinds Beverage Co. alleging the company’s iced tea products are misleadingly labeled as natural despite containing caramel color. Martin v. Tradewinds Beverage Co., No. 16-9249 (C.D. Cal., filed December 14, 2016). The plaintiff argues that she regularly paid a premium for Tradewinds Iced Tea products believing them to be made of all-natural ingredients. For alleged violations of California’s consumer-protection statutes, she seeks a corrective advertising campaign, destruction of all misleading advertising materials, restitution, damages and attorney’s fees. Issue 626
A California federal court has dismissed a lawsuit alleging Kellogg Co. misrepresents its Mother’s® Cookies products as free of trans fats despite containing partially hydrogenated oil (PHO). Hawkins v. Kellogg Co., No. 16-147 (S.D. Cal., order entered December 13, 2016). Details about the dismissal of a similar case involving the same plaintiff appear in Issue 592 of this Update. The court held that the plaintiff had standing to sue based on the health effects of inflammation and organ damage associated with the consumption of PHO, noting that Kellogg’s response to the arguments focused on the insufficiency of speculative future risks for standing rather than the current effects. The court then turned to federal law governing the plaintiff’s claims and found that because PHO is currently permitted in food until June 2018, the plaintiff could not plausibly allege that Kellogg violated federal law. Further, her state law claims were preempted by…
A California federal court has granted the U.S. Department of Agriculture’s (USDA’s) motion for summary judgment in a case alleging the agency acted arbitrarily in denying a petition to prohibit foie gras produced from force-fed poultry. Animal Legal Def. Fund v. USDA, No. 12-4028 (C.D. Cal., order entered December 14, 2016). In the petition for rulemaking, several animal rights organizations and individuals argued force-feeding poultry caused hepatic lipidosis in the animals, rendering them unhealthy and unsafe for consumption; USDA’s Food Safety Inspection Service (FSIS) disagreed, finding that the buildup of fat from force-feeding did not make the liver unsafe to consume, unlike buildup related to disease. The court first determined that the Animal Legal Defense Fund and other plaintiff organizations had standing to sue, but the plaintiff individuals did not. Turning to the merits of the case, the court considered the plaintiffs’ three challenges to FSIS’s decision: (i) “its explanation for…
A California federal court has denied Kraft Food Group Inc.’s request to stay class action litigation alleging the company’s fat-free cheese product is misleadingly labeled “natural” because it contains artificial coloring, finding that the U.S. Food and Drug Administration’s (FDA’s) expected guidance on the term “natural” does not affect the issues of the case. Morales v. Kraft Foods Grp. Inc., No. 14-4387 (C.D. Cal., order entered December 6, 2016). A week earlier, the same court denied Kraft’s motion for summary judgment on the grounds that triable issues existed in the case, including (i) “whether consumers are likely to believe that ‘artificial color’ is not an artificial ingredient if it is produced by a natural product”; (ii) “whether such belief is material to customers’ purchasing decisions”; and (iii) “whether all artificial colors, regardless of source, are artificial ingredients.” Details about the certification of the class appear in Issue 570 of this…
Two people have been convicted of conspiracy in charges related to a scheme to distribute counterfeit 5-Hour Energy drinks. United States v. Shayota, No. 15-0264 (N.D. Cal., verdict entered November 28, 2016). The couple, Joseph and Adriana Shayota, produced several million bottles of a drink manufactured under unsanitary conditions and labeled the drink with 5-Hour Energy's packaging. Before beginning that scheme, the couple reportedly bought 5-Hour Energy drinks intended for the Mexican market, repackaged them and sold them in the United States for a price well below the retail price. Six other defendants pleaded guilty to similar charges, and 5-Hour Energy maker Living Essentials won a $20-million civil judgment in March 2016. See Los Angeles Times, November 30, 2016. Issue 624
Three consumers have filed a lawsuit against Chipotle Mexican Grill, Inc. alleging the company misrepresents the calorie counts of its food in store menus, boards and advertising. Desmond v. Chipotle Mexican Grill, Inc., No. BC640700 (Cal. Super. Ct., Los Angeles Cty., filed November 15, 2016). The complaint asserts that the defendants each relied upon a menu board displaying a photo of a burrito with chorizo and "300 calories" to order what they believed to be a low-calorie option, then realized after eating it that "the burrito couldn't have been just 300 calories." The plaintiffs seek damages and attorney's fees for alleged violations of California's consumer-protection statutes. Issue 624
Two consumers have filed a projected class action against Arizona Canning Co. alleging that the image of a bowl full of beans on its Sun Vista products misleads consumers into believing the can is filled completely with beans rather than filled with some beans and a large amount of water. Beckman v. Ariz. Canning Co., No. 16-2792 (S.D. Cal., removed November 14, 2016). The complaint asserts that the “picturesque” label image depicts “a bowl full of plump and hearty beans with glimmer of shine, and little to no water,” but when the can is opened, it reveals “the repulsive sight of bean water” and “an inappropriately large amount of water and a small amount of beans.” The complaint admits that a reasonable consumer “would expect to find some water within the container,” but one plaintiff’s “home investigation” apparently found that a 29-ounce can of pinto beans contained 13 ounces of…
