Citing independent product tests, four consumers seeking to represent a class have filed a lawsuit in California state court alleging that dozens of wineries in the state manufacture and sell wine that contains as much as five times the maximum safe daily limit of arsenic. Charles v. The Wine Grp., Inc., No. BC576061 (Cal. Super. Ct., Los Angeles Cty., filed March 19, 2015). “[J]ust a glass or two of these arsenic contaminated wines a day over time could result in dangerous arsenic toxicity to the consumer,” the complaint alleges. The plaintiffs apparently hired BeverageGrades, an independent laboratory in Colorado, to test for levels of inorganic arsenic, which is “substantially more toxic and dangerous to humans” than organic arsenic, the complaint says. Ingestion is reportedly linked to a variety of health issues, including nausea, vomiting, disturbances of the cardiovascular and nervous systems, and type 2 diabetes. The complaint asserts that in…
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A California federal court has approved the proposed settlement in a class action alleging that Jamba Juice® mislabels its smoothie kits as “all natural” despite containing synthetic ingredients gelatin, xanthan gum, ascorbic acid, steviol glycosides, and modified corn starch. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., settlement approved March 18, 2015). The December 2014 proposed settlement was reached three months after the court certified the class for liability but not for damages. Under the agreement, Jamba Juice® will remove “all natural” on the product packaging and the company website by March 31, 2015. Additional information about the settlement appears in Issue 547 of this Update. Issue 559
A California appeals court has affirmed a lower court’s ruling against plaintiff Environmental Law Foundation (ELF), which alleged that the products of Beech-Nut Nutrition Corp. and other food manufacturers, distributors and retailers contained sufficient amounts of lead to trigger warnings required under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. A139821 (Cal. Ct. App., 1st App. D., Div. 1, order entered March 17, 2015). ELF argued that several products, including foods predominantly intended for babies and toddlers, contained more than the state’s safe-harbor level of 0.5 micrograms per day. On appeal, ELF challenged the trial court’s decision to allow Beech-Nut’s experts to average lead test results over multiple lots rather than evaluating each individually because the single highest result may have met the minimum threshold for Prop. 65 labeling. The court dismissed the challenge, finding that averaging…
A California appeals court has rejected a Napa restaurant’s attempt to circumvent the state’s foie gras ban by describing it as a gift for ordering another dish then arguing that a resulting suit brought by the Animal Legal Defense Fund (ALDF) seeking an injunction was merely a strategic lawsuit against public participation (SLAPP) in violation of the state anti-SLAPP statute. Animal Legal Def. Fund v. LT Napa Partners LLC, No. A139615 (Cal. Ct. App., order entered March 5, 2015). Additional information on the foie gras ban, which a California federal court struck down in January 2015, appears in Issue 550 of this Update. Kenneth Frank, the head chef at Napa’s La Toque restaurant, was a vocal opponent of California’s foie gras ban; he testified at state senate hearings, participated in public debates and authored a newspaper opinion piece on the subject. On three occasions, ALDF sent an investigator to La Toque…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the deadline for public comments on hazard identification materials on BPA and female reproductive toxicity from April 6 to April 20, 2015, in response to a request from the American Chemistry Council. OEHHA has also announced that the May 7 meeting of its Developmental and Reproductive Toxicant Identification Committee (DARTIC) to consider the addition of bisphenol A (BPA) to its list of chemicals known to the state to cause reproductive toxicity will be continued on May 21 in the same location if the committee is unable to finish its deliberations on May 7. Citing the availability of new epidemiological and toxicological data, DARTIC will assess “whether BPA has been clearly shown by scientifically valid testing according to generally accepted principles to cause female reproductive toxicity.” After adding BPA to the list of reproductive toxicants under the Safe…
Refusing to certify the class, a California federal court has granted a partial motion to dismiss in a putative class action alleging that Ocean Spray Cranberries Inc. mislabels its “100% Juice” products as “No Sugar Added” despite adding fruit juice from concentrate. Major v. Ocean Spray Cranberries, Inc., No. 12-3067 (N.D. Cal., order entered February 26, 2015). The plaintiff argued that adding the concentrate and labeling the products “No Sugar Added” violates California law, which prohibits use of that phrase on food “containing added sugars such as jam, jelly, or concentrated fruit juice.” Instead, she asserted, Ocean Spray must include the disclaimer that their products are not low-calorie foods. Ocean Spray argued that the plaintiff did not rely on the “No Sugar Added” label when purchasing the products, and the court agreed, pointing to a deposition in which the plaintiff admitted that calorie content was not a motivating factor in…
A California appeals court has affirmed a lower court’s ruling dismissing a putative class action alleging that Safeway misbranded its Lucerne-brand of Greek yogurt because U.S. Food and Drug Administration (FDA) regulations prohibit the use of “milk protein concentrate” (MPC) in foods labeled as yogurt. Tamas v. Safeway, Inc., No. RIC1206341 (Cal. Ct. App., 4th Dist., Div. 3, order entered February 23, 2015). The plaintiff argued that a 1981 FDA regulation determining yogurt’s “Standard of Identity” (SOI) dictated what ingredients are allowable in products sold as yogurt despite the agency’s stay of the regulation soon after it was issued. FDA promised to schedule a public hearing on the regulation but, as of January 2009, “due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed. Therefore, these provisions were never in effect. Consequently, cultured milk…
A California federal court has dismissed a lawsuit arguing that PepsiCo Inc. should provide medical monitoring for a class of Diet Pepsi or Pepsi One purchasers because the company does not warn consumers that 4-methylimidazole (4-MEI), a compound in caramel coloring, has allegedly been linked to potential health risks in rodent studies. Riva v. PepsiCo, Inc., No. 14-2020 (N.D. Cal., order entered March 4, 2015). The case was severed from a consolidated class action after the plaintiffs decided to pursue medical monitoring and personal injury claims not included in the consolidated action. Information about the case’s transfer of venue appears in Issue 523 of this Update. The court determined that the plaintiffs lacked standing to pursue the claim because “they have not established that the alleged risk of bronchioloalveolar cancer (for which they seek lung scans and testing) is both credible and substantial.” The studies cited as support for the…
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced its intent to list styrene as a chemical known to the state to cause cancer under the authoritative bodies listing mechanism of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). Styrene is used in the manufacture of various consumer products, including polystyrene packaging, synthetic rubber and food containers. Two previous attempts to list styrene as known to cause cancer under Prop. 65’s Labor Code listing mechanism failed. The agency’s latest attempt relies on findings in the National Toxicology Program’s (NTP’s) 2011 Report on Carcinogens, which concluded that styrene is “reasonably anticipated to be a human carcinogen” based on studies showing that inhalation and oral exposure to the chemical increased the incidence of malignant and combined incidence of benign and malignant lung tumors in male and female mice. The National Research Council confirmed…
A consumer has filed a putative class action against Jim Beam Brands Co. and its owner Beam Suntory Import Co. alleging that the label indicating that the bourbon whiskey is “handcrafted” is misleading because the bourbon is produced with machines. Welk v. Beam Suntory Import Co., No. 15-328 (U.S. Dist. Ct., filed February 17, 2015). The complaint asserts that videos, photos and diagrams on Jim Beam’s website show that its bourbon “is manufactured using mechanized and/or automated processes, resembling a modern day assembly line and involving little to no human supervision, assistance or involvement.” The handcrafted claim leads consumers to purchase Jim Beam Bourbon falsely believing it to be of superior quality, so they are willing to pay a premium price, the complaint argues. The plaintiff alleges misrepresentation and violations of California’s False Advertising Law and Unfair Competition Law, and he seeks class certification, an injunction, an order for Jim…
