A California federal court has granted certification to a class of consumers alleging that Salov North America Corp., maker of Filippo Berio olive oil, misleads consumers by labeling its oil as “Imported from Italy” even though most of the oil is produced in Tunisia, Greece and Spain. Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., order entered July 15, 2016). The court dismissed Salov’s arguments against the plaintiff serving as class representative because of her felony record and her friendship with class counsel, finding that the charge of driving under the influence does not call her honesty and integrity into question and that the plaintiff’s friend is one of several class counsel in the case. Additional details about the case appear in Issues 554 and 590 of this Update, while details on class certification in the plaintiff’s lawsuit against Safeway involving similar allegations appear in Issue 606. …
Tag Archives California
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed initiating a regular rulemaking process to extend until December 30, 2017, an emergency measure that allows retailers to use standard point-of-sale warning messages for bisphenol A (BPA) exposures from canned and bottled foods and beverages. Under Proposition 65 (Prop. 65) regulations, consumer products that contain any chemical known to the state to cause reproductive toxicity or cancer must display a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof as long as the warning is prominent and conspicuous.” Taking into account comments received on the emergency measure, OEHHA believes that the proposed regulation “will provide consistent, informative, and meaningful warnings to consumers about significant exposures to BPA.” These warnings will included a link to OEHHA’s website, “which will contain fact sheets, links to informational materials on BPA from other authoritative…
A California federal court has dismissed a claim of negligent misrepresentation in a lawsuit alleging that Safeway Inc. underfilled its tuna cans by 10 to 20 percent, according to testing conducted by the U.S. National Oceanic and Atmospheric Administration. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered July 13, 2016). Details about the complaint appear in Issue 584 of this Update. In a motion to dismiss, Safeway challenged the plaintiffs’ claims of unjust enrichment and negligent misrepresentation. The court dismissed arguments that unjust enrichment is not a cause of action in California, finding that the claim could be construed as a quasi-contract claim. Safeway also argued that the negligent misrepresentation claim was barred by the economic loss rule, which “requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Because…
A California federal court has granted summary judgment to Pom Wonderful LLC in its trademark lawsuit against Pur Beverages Inc., which sells a pomegranate-flavored beverage under the name “Pur Pom.” Pom Wonderful LLC v. Hubbard, No. 13-6917 (C.D. Cal., order entered June 29, 2016). Pom filed a lawsuit alleging infringement of the “pom” mark, and Pur defended its use by arguing that Pom’s stylized use of the mark—a heart-shaped “O”—prevented Pom from claiming ownership of the non-stylized mark. The court disagreed, finding that the “stylized lettering does not alter the pronunciation or perception of the word; the standard character mark is both aurally and visually indistinguishable from the mark bearing a heart-shaped ‘O.’” Information about the Ninth Circuit decision reversing a lower court’s decision in favor of Pur Beverages appears in Issue 550 of this Update. Issue 610
A California federal court has granted preliminary approval for a settlement agreement in a lawsuit alleging PepsiCo products contain levels of 4-Methylimidazole (4-MEI) exceeding the legally permissible amount under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. PepsiCo Inc., No. 14-0478 (N.D. Cal., order entered June 28, 2016). Under the settlement, PepsiCo has agreed “to require its caramel coloring suppliers to meet certain 4-MeI levels in products shipped for sale in the United States, ensuring the 4-MeI concentration levels will not exceed the level of 100 parts per billion, and to test the covered products pursuant to an agreed protocol.” The court noted that the injunctive relief is the same as the agreement in an action brought by the Center for Environmental Health (CEH) alleging similar facts. “However, the Settlement Agreement will ‘enhance the CEH settlement by: (1) expanding the geographic scope of…
The Julia Child Foundation for Gastronomy and the Culinary Arts has filed a lawsuit against Airbnb Inc. alleging the home-sharing company used Child’s name and likeness without permission in an advertised promotion. Julia Child Found. For Gastronomy & Culinary Arts v. Airbnb Inc., No. 16-2626 (Cal. Super. Ct., Santa Barbara Cty., filed June 22, 2016). According to the complaint, Airbnb contacted the foundation in April 2016 requesting permission to use the famed American chef and author’s name and likeness in an ad promoting a free night’s stay at a French property Child and her husband had used as a summer home. “Consistent with Mrs. Child’s longstanding and widely-known policy of politely refusing all requests to associate her name or image with commercial products and brands,” the foundation denied the request, then discovered that Airbnb used her image in its marketing campaign anyway. The foundation seeks a preliminary and permanent injunction,…
A California federal court has invalidated an amended section of the Organic Foods Production Act that allowed organic producers to use compost materials containing synthetic fertilizers, finding the U.S. Department of Agriculture (USDA) violated the Administrative Procedures Act (APA) by failing to subject the amendment to public notice and comment before it took effect. Ctr. for Envtl. Health v. Vilsack, No. 15-1690 (N.D. Cal., order entered June 20, 2016). Details about the complaint appear in Issue 562 of this Update. In 2011, USDA issued guidance on the agency’s position allowing the use of fertilizer and compost containing unapproved synthetic materials in the production of organic food. The plaintiffs, three environmental groups, argued that the guidance was a legislative rulemaking—thus triggering requirements of public notice and comment under the APA—while USDA asserted that it had merely clarified a preexisting rule, not changed it. The court sided with the environmental groups, finding the…
Following the release of U.S. Food and Drug Administration (FDA) final guidance finding that “evaporated cane juice” (ECJ) should be labeled as “sugar” on food products, Lifeway Foods has filed a motion arguing that the May 2016 rule should not affect the outcome of a consumer’s lawsuit against the company arguing it mislabeled its kefir smoothies. Figy v. Lifeway Foods Inc., No. 13-4828 (N.D. Cal., San Francisco Div., motion filed June 13, 2016). The case is one of many stayed or dismissed without prejudice awaiting FDA guidance after the agency announced it would reconsider the issue in March 2014. In its motion, Lifeway argues that the guidance is “intended to advise” and “does not establish any rights for any person and is not binding on the FDA or the public.” “The Guidance has no more bearing on Plaintiff’s claims under California’s consumer protection statutes than it has on his common…
A California federal court has granted voluntary dismissal to the plaintiff in a putative class action alleging P.F. Chang’s China Bistro Inc. discriminates against customers with a gluten allergy by adding a surcharge to gluten-free dishes. Phillips v. P.F. Chang’s China Bistro Inc., No. 15-0344 (N.D. Cal., San Jose Div., order entered June 6, 2016). The order granted dismissal to the plaintiff with prejudice but without prejudice as to the putative class, leaving the possibility that another plaintiff may step into the lead plaintiff role. The court also imposed the defendant’s costs on the plaintiff. Details on the complaint appear in Issue 555 of this Update. Issue 607
Following a May 2016 refusal to invalidate a San Francisco regulation requiring warning labels on sugar-sweetened beverages (SSBs), a California court has granted an injunction on enforcement pending appeal. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered June 7, 2016). Details on the May 2016 decision appear in Issue 605 of this Update, while additional information on the lawsuit appears in Issues 573, 586 and 592. The ordinance, set to take effect July 25, 2016, requires billboards and other public advertisements to include a warning that “[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association (ABA) challenged the regulation on First Amendment grounds, but the court denied a preliminary injunction, finding the industry group’s claims unlikely to succeed. “[A]n injunction pending appeal may be appropriate, even if the Court believed its analysis in denying preliminary injunctive relief is…
