A federal court in California has dismissed with prejudice the third amended complaint filed by named plaintiffs on behalf of a putative class of purchasers of Chobani Greek Yogurt products, alleging violations of state consumer protection laws because the products were mislabeled under federal law by listing evaporated cane juice (ECJ), instead of sugar, as an ingredient and stating that the yogurts contain only natural ingredients, when they actually contain fruit and vegetable juice—purportedly “highly processed unnatural substances”—as well as turmeric for color. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., decided February 20, 2014). The court agreed with Chobani that the plaintiffs failed to sufficiently allege reliance or to plead fraud with sufficient particularity and thus lacked standing to pursue their claims under California’s Unfair Competition Law (UCL), False Advertising Law and Consumers Legal Remedies Act. Apparently annoyed that the plaintiffs had been given numerous opportunities to cure pleading…
Tag Archives California
The Consumer Advocacy Group, Inc. has filed a series of Proposition 65 (Prop. 65) 60-day notices since December 2013 against supermarkets and rice companies in California, Texas and Taiwan, alleging violations of the law for failure to warn consumers that their rice products contain arsenic (inorganic arsenic compounds), known to the state to “cause both cancer and reproductive toxicity.” The most recent notice was filed February 17, 2014. Under Prop. 65, private citizen enforcers must notify the alleged violator and local prosecuting authorities of their intent to sue so that the alleged violator has the opportunity to correct any alleged violation and local district attorneys have the opportunity to bring government action. The first in this series of notices, brought against Far West Rice, Inc., also alleged that the company’s rice contained lead. Issue 514
California State Senator Bill Monning (D-Carmel) has introduced legislation (SB 1000) that would require all sugar-sweetened beverages (SSBs) containing more than 75 calories per 12-ounce serving to carry safety warnings. Co-sponsored by the California Center for Public Health Advocacy, the Sugar-Sweetened Beverage Safety Warning Act would direct manufacturers, distributors and retailers to place the following notice on sealed containers, multipacks and vending machines, as well as any premises where SSBs are sold in unsealed containers: “STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The bill would also mandate the two-year retention of business records pertaining to the distribution, purchase or sale of SSBs as part of a statewide effort “to determine the quantity and type of sugar-sweetened beverages distributed, purchased or sold.” “When the science is this conclusive, the State of California has a responsibility to take steps to protect consumers,”…
Represented by animal rights organization Compassion over Killing, a California resident has filed a putative statewide class action against the Kroger Co., alleging that it misleads consumers by labeling its store-brand chicken products as “sourced from chickens raised ‘cage free in a humane environment,’” when the company’s “Simple Truth” chickens “are treated no differently than other mass-produced chickens on the market.” Ortega v. The Kroger Co., No. BC536034 (Cal. Super. Ct., Los Angeles Cty., filed February 11, 2014). Plaintiff Anna Ortega claims that she purchased the company’s chicken products, sourced from Perdue, relying on the package representations and paid a premium for them, averaging 41 percent more than comparable products. The complaint outlines the industry standards that Perdue and other chicken processors follow, detailing how they fail to prevent pain, disease and injury from birth to slaughter for a significant number of birds. According to the complaint, Kroger and Perdue…
A federal court in California has preliminarily approved a $3.375 million settlement of class-action claims that Trader Joe’s misled consumers throughout the United States by selling a number of food products with “All Natural” labels despite the presence of synthetic or artificial ingredients. Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., order entered February 6, 2014). Additional details about the complaint appear in Issue 415 of this Update. According to a news source, the agreement would provide class members with proof of purchase the average price of the purchased items. Those without proof of purchase would receive between $2.70 and $39.99. The grocery chain has also apparently agreed to stop advertising the products as “all natural.” The final approval hearing has been scheduled for July 9, 2014. See Law360, February 7, 2014. Issue 513
A California resident has filed a putative nationwide class action against Suja Life, LLC, alleging that the company, which advertises and labels its juice products as “raw” and “cold-pressed,” misleads consumers because it uses a high pressure processing (HPP) treatment that alters the nutrients and live enzymes that raw-product purchasers wish to consume. Heikkila v. Suja Life, LLC, No. 14-0556 (N.D. Cal., filed February 5, 2014). Claiming that HPP’s effects on juice products are “identical to those of traditional pasteurization—inactivated enzymes, inactivated probiotics, altered physical properties of the product, and denatured proteins, among other undesirable qualities,” the plaintiff alleges that the products “are nothing more than run-of-the-mill, processed juices.” According to the complaint, the plaintiff reviewed the company’s Website, packaging and labeling before making her purchase and paid a premium price for the products. She contends that raw juices have a short shelf life and are thus more expensive than…
A federal court in California has denied the motion to dismiss filed by guacamole maker Yucatan Foods, L.P. in a putative class action alleging violations of labeling laws based on the company’s use of “evaporated cane juice” instead of “sugar” on product labels. Swearingen v. Yucatan Foods, L.P., No. 13-3544 (N.D. Cal., order entered February 7, 2014). So ruling, the court rejected Yucatan’s arguments that (i) the “home state” exception of the Class Action Fairness Act should apply and divest the federal court of jurisdiction because a nationwide class of consumers cannot be certified given that California law cannot regulate conduct unconnected to the state—the court found that resolution of this issue was not appropriate at the pleadings stage; (ii) federal law preempts the plaintiffs’ state law-based claims—the court determined that the claims rise and fall on the defendant’s compliance with federal law, thus the requirements the plaintiffs seek to…
Missouri Attorney General (AG) Chris Koster has sued California AG Kamala Harris, seeking to enjoin the enforcement of a voter-approved ballot initiative (Prop. 2) and law (A.B. 1437) that will increase the size of egg-laying hen enclosures and decrease flock densities both for California producers and those in other states wishing to sell eggs in California. Missouri ex rel. Koster v. Harris, No. 14-0067 (E.D. Cal., filed February 3, 2014). According to the complaint, Missouri egg farmers will be forced under the law to “incur massive capital improvement costs to build larger habitats for some or all of Missouri’s seven million egg-laying hens, or they can walk away from the state whose consumers bought one third of all eggs produced in Missouri last year. The first option will raise the cost of eggs in Missouri and make them too expensive to export to any state other than California. The second…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has entered a memorandum of understanding (MOU) with the state’s Department of Food and Agriculture relating to “cooperation and communication in the implementation of Proposition 65 with respect to exposure to Proposition 65 listed chemicals in food or food additives.” According to OEHHA, the agreement “describes the types of information that will be shared between the two agencies prior to public release and a mechanism by which the sharing can be accomplished.” Proposition 65 (Prop. 65) was adopted by voter initiative in 1986; it requires businesses to provide warnings when they cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity. The MOU applies to those chemicals listed under Prop. 65 “that are or may be found in California’s soil, food products, agricultural residues and fertilizers.” See OEHHA Press Release, February 5, 2014.…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) will conduct a symposium on children’s health February 25-26, 2014, in Sacramento. According to OEHHA, the agency will conduct the symposium “to hear some of the latest science regarding impacts of chemical exposures during development. This is a broad topic and thus we are focusing in three areas: 1) epigenetic changes from environmental exposures; 2) impacts of toxicants on the developing lung and brain: 3) new in vitro methods for assessing potential for developmental toxicity.” OEHHA hopes that regulatory scientists in the state will begin thinking about (i) “How to incorporate complex interactions into risk assessment, particularly for early life exposures”; (ii) “How to incorporate information from new toxicity testing paradigms into risk assessments now; and” (iii) “How to incorporate impacts of non-chemical stressors that increase vulnerability, and whether current methods of risk assessment adequately account for at least some of…
