A California federal court has held that the state law prohibiting the sale of foie gras resulting from the forcefeeding of ducks or geese is preempted by a federal law regulating the distribution and sale of poultry products. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., order entered January 7, 2015). The Ninth Circuit previously affirmed a lower court’s denial of a temporary injunction sought by the plaintiffs based on a failure to show a likelihood of success on the merits of their vagueness or commerce clause challenges. Additional information about the Ninth Circuit ruling appears in Issue 497 of this Update, and details about the U.S. Supreme Court’s denial of certiorari to review that decision appear in Issue 542. The court first found that the plaintiffs had standing to challenge the ban despite that defendant Kamala Harris, in her capacity as state attorney…
Tag Archives California
A California federal court has granted Blue Diamond’s motion to decertify a statewide class of consumers who alleged that the company’s almond milk product labels were misleading because they cited “evaporated cane juice” on the ingredient list rather than the alleged common name for the substance, sugar. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., order entered December 15, 2014). The court had preliminarily certified the class in May 2014 on the condition that the plaintiff could provide a damages model that limited recovery to those injured by the alleged mislabeling. Upon reviewing the proposed model, the court found fundamental flaws with the method of determining damages “because Dr. Capps’ model is incapable of isolating the damages attributable to Defendant’s alleged wrongdoing. Instead, Dr. Capps’ methodology measures the ‘combined effect’ of Blue Diamond’s brand value and Blue Diamond’s use of ‘evaporated cane juice’ and/or ‘All Natural’ on the prices…
A California federal court has granted plaintiffs’ motion for summary judgment in a case alleging that Safeway charged a class of consumers more than the prices permitted under the terms of its online service contract when the consumers purchased groceries from the grocer’s website. Rodman v. Safeway, No. 11-3003 (order entered December 10, 2014). Safeway sells groceries via its Safeway.com site, where it requires users to accept its Terms and Conditions upon registration. That agreement includes a provision about prices varying from order to order: “The prices quoted on our web site at the time of your order are estimated prices only. You will be charged the prices quoted for Products you have selected for purchase at the time your order is processed at checkout. The actual order value cannot be determined until the day of delivery because the prices quoted on the Web site are likely to vary either…
Two consumers have filed a putative class action in California federal court alleging that Maker’s Mark® bourbon whisky is not “handmade,” as the alcohol brand advertises, but is instead manufactured using “mechanized and/or automated processes” with “little to no human supervision, assistance or involvement.” Nowrouzi v. Maker’s Mark Distillery, Inc., No. 14-2885 (S.D. Cal., filed December 5, 2014). Citing photos and a video tour of the distillery as evidence, the plaintiffs argue that because Maker’s Mark® uses machines to make its product, its “handmade” claim and premium pricing amount to misrepresentation and violations of California’s false advertising statute. They allege that they “purchased Maker’s Mark whisky under the false impression that the whisky was of superior quality by virtue of being ‘Handmade’ and thus worth an exponentially higher price as compared to other similar whiskies.” They seek class certification, an injunction requiring discontinuation of the “handmade” description, a corrective advertising…
A California federal court has denied certification to a putative class action alleging that Mott’s misleadingly labeled its apple juice as having “No Sugar Added” because the plaintiff failed to provide a feasible model for calculating damages. Rahman v. Mott’s LLP, No. 13-3482 (N.D. Cal., order entered December 3, 2014). The court further refused to certify a liability class, finding it would not materially advance resolution of the case. The court first assessed the proposed class definition. It found that the plaintiff and the proposed class met the requirements of numerosity, ascertainability, commonality, and adequacy; in addition, the court rejected the juice company’s argument that the plaintiff was atypical because he is a Type 2 diabetic who closely reads nutrition labels. The court then discussed whether the plaintiff established that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that…
After a California federal court certified the class for liability but not for damages, the parties to a class action alleging that Jamba Juice mislabeled its smoothie kits as “all natural” despite containing synthetic ingredients like gelatin and xanthan gum have reached a settlement. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., plaintiffs’ motion for settlement approval filed December 1, 2014). Under the proposed settlement agreement, Jamba Juice will remove “all natural” from its smoothie kit labeling and advertising by March 2015. The agreement will remain in force until the smoothie kits no longer contain the allegedly unnatural ingredients or the U.S. Food and Drug Administration classifies the ingredients as natural. The plaintiffs’ attorneys will also receive $425,000 in costs and fees. Additional information about the class certification appears in Issue 539 of this Update. Issue 547
A consumer has filed a putative class action in California state court alleging that Anheuser-Busch’s “Lime-A-Rita” malt beverages have too many calories and carbohydrates to be sold under the Bud Light Lime® label. Cruz v. Anheuser-Busch, LLC, No. BC563150 (Cal. Super. Ct., Los Angeles Cty., filed November 12, 2014). The plaintiff alleges that she purchased Bud Light Lime Lime-A-Rita® believing it to be low in calories and carbohydrates, but later learned that a serving of 8 fluid ounces contains between 192 and 220 calories and 22.8 to 23.6 g of carbohydrates compared to Bud Light’s 110 calories and 6.6 g of carbohydrates. “In general, ‘light’ may generally describe a zero calorie or a reduced calorie food, and consumers such as Plaintiff and the Class understand the ‘light’ label on a product that has a reduced or low number of calories,” the complaint asserts. The plaintiff attributes the level of calories…
According to a news source, New Jersey residents have filed a putative class action in state court against the Texas-based company that makes Tito’s Handmade Vodka®, the fourth such action filed within the past two months, alleging that promoting and labeling the product as “handmade” deceives consumers because the vodka is made in an industrial facility and the company sells more than 15 million bottles a year. McBrearty v. Fifth Generation, Inc. The first complaint was filed in California in September 2014 and subsequently removed to federal court, Hofmann v. Fifth Generation, Inc.; the second followed in early October in an Illinois state court, Aliano v. Fifth Dimension, Inc.; the third was filed in a Florida federal court, Pye v. Fifth Generation, Inc. The complaints variously refer to the company’s website and a Forbes article purportedly featuring images of old-time pot-still production (“i.e., in a shack containing a pot still…
Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (W.D. Tex., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed November 7, 2014). The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because…
According to a news source, Iowa Gov. Terry Branstad (R) and the attorneys general (AGs) of Missouri, Nebraska, Oklahoma, Alabama, and Kentucky have filed a notice that they will appeal a district court dismissal of their challenge to a California law that allegedly forces egg producers in other states to comply with a voter-approved ballot measure that bans the sale of eggs which have been produced by hens in conventional cages. Missouri ex rel. Koster v. Harris, No. 14-17111 (9th Cir., notice of appeal filed October 24, 2014). Information about a related complaint appears in Issue 512 of this Update. The district court apparently dismissed the complaint in early October on the ground that the officials lack standing to bring the lawsuit because California’s law affects only a subset of farmers who plan not to comply with it. Missouri Attorney General Chris Koster claims that the state’s farmers, who export some…
