A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015 and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, describing several studies examining the effects of PHO on the human body. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 592
Tag Archives California
A California federal court has dismissed a lawsuit against Costco Wholesale Corp. alleging the company’s shrimp was falsely advertised as adherent to a supplier code of conduct on human rights while the product was allegedly obtained through the use of slave labor. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., order entered January 15, 2016). The plaintiff argued that she was harmed because she purchased shrimp relying on Costco’s misrepresentation; the court disagreed after Costco provided records of the plaintiff’s and her mother’s purchases, which the company tracks through its membership program. Accordingly the court granted Costco’s motion to dismiss but allowed the plaintiff leave to amend. Details about the August 2015 complaint appear in Issue 576 of this Update. Issue 591
The U.S. Department of Justice (DOJ) has intervened in an ongoing series of lawsuits against Tri-Union Seafoods, StarKist and Bumble Bee Foods alleging the companies conspired to set prices for tuna in the United States. In re Packaged Seafood Prods. Antitrust Litig., 15-2670 (S.D. Cal., order entered January 20, 2015). A California federal court granted the government’s unopposed motion to intervene at a status conference with attorneys representing several consumer and competitor plaintiffs in the consolidated action. The court found “common questions of law and fact between this civil action and an ongoing criminal grand jury investigation” conducted by the DOJ and accordingly granted a stay in the case. Details about the consolidation appear in Issue 588 of this Update and additional information on lawsuits brought by grocers appears in Issues 574 and 590. Issue 591
A New York federal court has denied Fifth Generation, Inc.’s motion to dismiss a lawsuit arguing that its Tito’s Handmade Vodka® is falsely advertised as handmade because machines are used in the process of manufacturing the product. Singleton v. Fifth Generation, Inc., No. 15-0474 (N.D.N.Y., order entered January 12, 2016). The court rejected the company’s claim that its adherence to U.S. Alcohol and Tobacco Tax and Trade Bureau standards does not relieve it from liability for false advertising claims. Further, the court found that “Tito’s labels could plausibly mislead a reasonable consumer to believe that its vodka is made in a hands-on, small-batch process, when it is allegedly mass-produced in a highly-automated one.” Accordingly, the court allowed several claims to continue, but dismissed allegations of breach of express warranties and negligent misrepresentation. The decision echoes a November 2015 ruling from a California federal court, which also refused to find that the safe harbor provision excused Fifth Generation from liability. Hofmann v. Fifth…
A California federal court has allowed plaintiffs in a false advertising putative class action to dismiss their claims of fraud based on the “extra virgin” quality of Filippo Berio olive oil in favor of pursuing their allegations that the products are falsely labeled as “made in Italy.” Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., Oakland Div., order entered January 8, 2016). The plaintiff sought to dismiss the “extra virgin” portion of the claims after the discovery process revealed the olive oil was sold in both clear-glass bottles—which the plaintiff asserted could damage the quality of the oil because of the light allowed through the glass—and tinted-glass bottles. Additional details about the claims’ survival of a motion to dismiss appear in Issue 554 of this Update. In February 2015, Shook Partner Ann Havelka authored an article for Law360 examining the case, arguing that it is “an example of…
A plaintiff has filed two similar lawsuits against H.J. Heinz Co. and Rockstar, Inc. alleging the companies’ products wrongfully bear “Made in the USA” label claims because they contain “foreign ingredients.” Alaei v. Rockstar, Inc., No. 15-2959 (S.D. Cal., filed December 31, 2015); Alaei v. H.J. Heinz Co., No. 15-2961 (S.D. Cal., filed December 31, 2015). Heinz 57® sauce, one complaint argues, is misrepresented as manufactured in the United States because some of its ingredients, including “turmeric, tamarind extract, and jalapenos, among other ingredients,” are “not from the United States.” Similarly, Rockstar’s Sugar Free beverage, described as “Made in the USA” on the label, contains “various amounts of taurine, guarana seed extract, and milk thistle extract, which, among other ingredients in Defendants’ products, are not from the United States.” These foreign ingredients, the complaint argues, are problematic because they are not subject to the same strict regulatory requirements and “are…
Chipotle Mexican Grill has reportedly been served with a grand jury subpoena as part of a U.S. Attorney’s Office and Food and Drug Administration criminal investigation into a California norovirus outbreak in August 2015 that sickened more than 200 people. The company’s fare was also linked to a norovirus outbreak in Massachusetts in December 2015. Chipotle’s food safety practices face additional scrutiny over an ongoing E. coli outbreak that has resulted in the closure of 43 Chipotle locations in Washington and Oregon and reports of related illnesses in several other states. See The New York Times, January 6, 2016. In a January 6 Form 8-K filing with the U.S. Securities and Exchange Commission, Chipotle reported a 14.6 percent drop in fourth quarter 2015 sales and non-recurring expenses related to its foodborne illness incidents of $14 to $16 million. Meanwhile, Pomerantz LLP announced on January 8 that it has filed a…
The nonprofit advocacy group Physicians Committee for Responsible Medicine (PCRM) has brought suit in the U.S. District Court for the Northern District of California seeking to prevent the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) from adopting a recommendation of the 2015 Dietary Guidelines Advisory Committee (DGAC). The DGAC is a joint committee formed by USDA and HHS that recommended the agencies drop from the newly issued 2015-2020 Dietary Guidelines for Americans the advice that healthy individuals limit their daily dietary cholesterol consumption to 300 milligrams per day. PCRM seeks to permanently enjoin the agencies from incorporating the recommendation into the guidelines and to instead maintain current recommended daily limits. The complaint alleges the data underlying the DGAC’s recommendation is not “fairly balanced” within the meaning of the Federal Advisory Committee Act because it omits evidence unfavorable to the egg industry. Rather, PCRM contends that the DGAC…
A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
Grumpy Cat Ltd., owner of the Grumpy Cat trademark, has filed a copyright infringement suit against Grenade Beverage LLC alleging the company failed to pay for the sales of authorized merchandise and sold additional unauthorized branded products. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., filed December 11, 2015). "Ironically," the complaint states, "while the world-famous feline Grumpy Cat and her valuable brand are most often invoked in a tongue-and-cheek fashion, Defendants' despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about." Grumpy Cat agreed to license its trademark to Grenade for use in relation to "a line of Grumpy Cat-branded coffee products," which the complaint asserts was mutually understood to mean a line of iced-coffee beverages called the "Grumpy Cat Grumppuccino." Grumpy Cat alleges that it later learned Grenade also planned to produce a line of roasted coffee grounds products associated…
