A California state court has certified a class challenging the source and grade of Safeway Inc.’s olive-oil products, which are labeled as “extra virgin” and “Imported from Italy” despite being manufactured from olives grown and pressed outside that country. Kumar v. Safeway Inc., No. RG14726707 (Cal. Super. Ct., Alameda Cty., order entered May 24, 2016). The plaintiff proposed two classes: one composed of consumers who purchased the products relying on the “extra virgin” label and another with consumers who relied on the “Imported from Italy” claims. The court assessed the classes in accordance with each requirement—ascertainability, commonality, typicality, adequacy and superiority—and found the plaintiff’s class definitions demonstrably met each standard. “Defendant’s argument that Plaintiff is required to demonstrate that class members have a common understanding of what ‘extra virgin’ means is unsupported by the authorities cited, and is not well taken,” the court noted. The plaintiff also leads a challenge…
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A consumer has filed a putative class action against Mondelez International Inc. alleging the company’s “Go-Paks,” packages of “mini” or “bite” versions of Nabisco cookie and cracker products, contain more than 25 percent slack-fill in violation of California law. Bush v. Mondelez Int’l Inc., No. 16-2460 (N.D. Cal., filed May 5, 2016). The “Go-Paks,” including Mini Chips Ahoy!, Mini Oreo and Ritz Bits varieties, are sold in opaque cups that do not indicate the quantities inside, the complaint asserts. The plaintiff argues that he relied on the cup’s size as a representation of the product he would be receiving and he would not have purchased the product had he known about the amount of slack-fill. For alleged violations of California consumer-protection statutes as well as breach of warranties, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, an injunction, actual and punitive damages, attorney’s fees and costs. Issue…
A California federal court has denied the American Beverage Association’s (ABA’s) attempt to preliminarily enjoin the enforcement of a law requiring manufacturers of sugar-sweetened beverages (SSBs) to provide a warning about the alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered May 17, 2016). Further details about the lawsuit appear in Issues 573, 586 and 592 of this Update. The court first assessed the ABA’s argument that the law would burden noncommercial speech in addition to regulating commercial speech, which would trigger the highest level of scrutiny. ABA members’ communications to consumers are not limited to commercial speech, the organization argued, because they also publicize other messages, such as promotion for the Pride Parade and the Chinese New Year’s Festival. The court disagreed, finding the amount of noncommercial speech affected was not substantial. The court then reviewed whether…
Two strawberry breeders formerly of the University of California, Davis have filed a lawsuit against the university targeting its strawberry-breeding program, which they argue is denying them the opportunity to license the breeds they helped cultivate. Cal. Berry Cultivars LLC v. Regents of U. of Cal., No. 16-2477 (N. Cal., removed to federal court May 6, 2016). The scientists left the program in 2014 to start their own cultivation company with a former California secretary of food and agriculture. Their departure triggered a lawsuit from the California Strawberry Commission, which asserted the university was neglecting the program. The scientists now reportedly argue the university refuses to license—“on a non-exclusive basis at a reasonable royalty”—the plants to California Berry Cultivars to suppress competition, amounting to allegations of conversion, breach of contract, breach of faith, breach of fiduciary duty and unfair competition. Details about the settlement of the previous lawsuit appear in…
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
The Organic Consumers Association (OCA) has filed lawsuits against The Hain Celestial Group, Inc. and The Honest Co., Inc. alleging the companies’ “organic” infant formula products contain multiple substances prohibited for use in organic food by the U.S. Department of Agriculture (USDA). Organic Consumers Assoc. v. Hain Celestial Grp., Inc., No. 16-2533 (D.C. Super. Ct., filed April 5, 2016); Organic Consumers Assoc. v. Honest Co., Inc., No. SC125655 (Cal. Super. Ct., Los Angeles Cty., filed April 6, 2016). The lawsuit against Hain Celestial challenges the label claims of its Earth’s Best products, which the complaint argues are all labeled organic despite none meeting federal organic regulations. “Behind the picturesque red barn of the Earth’s Best logo displayed on each of the Falsely Labeled Products lies a chemical soup of synthetic, toxic, and hazardous ingredients,” the complaint argues. “For example, of the 48 ingredients in Earth’s Best Organic Infant Formula, more than…
A California federal court has dismissed a lawsuit alleging Kraft Heinz Food Co. mislabels its Heinz sauces as manufactured in the United States despite containing ingredients sourced outside the country, including turmeric, tamarind extract and jalapenos. Alaei v. Kraft Heinz Food Co., No 15-2961 (S.D. Cal., order entered April 22). The complaint failed to meet the heightened pleading standards associated with fraud claims, the court found, in part because she did not allege that the Heinz 57® sauce she bought contained any specific ingredients of foreign origin. Further, she could not have standing to assert misrepresentation claims against products she did not purchase without arguing the other sauces were substantially similar to Heinz 57®. Accordingly, the court granted Kraft’s motion to dismiss but allowed the plaintiff leave to amend. Additional information on the complaint appears in Issue 589 of this Update. Issue 602
A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
