In a putative class action against Amy’s Kitchen, a federal court in California has dismissed with leave to amend claims that the company has mislabeled its products by listing “evaporated cane juice” (ECJ) or “organic evaporated cane juice” as an ingredient. Figy v. Amy’s Kitchen, Inc., No. 13-3816 (N.D. Cal., order entered November 25, 2013). The company argued that the plaintiff “failed to allege that he relied on the products’ ingredient labeling” and thus lacked standing under the state’s Unfair Competition Law (UCL). According to the plaintiff, “reliance on a label misrepresentation is not a necessary element of a claim under the unlawful prong of the UCL.” Interpreting and applying In re Tobacco II Cases, 46 Cal. 4th 298 (2009), and Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), the court held, “because the statutes plaintiff relies on prohibit specific types of misrepresentation on food labels—the listing of…
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Finding that individual issues predominate over common ones in a putative class action alleging that Chipotle Mexican Grill sold conventionally raised meats despite advertising its use of “naturally raised” meats, a federal court in California has denied the plaintiff’s motion for class certification. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered December 2, 2013). Additional details about the case appear in Issue 451 of this Update. According to the court, when and where a class member ate at Chipotle and which meat she ate can only be handled individually. The court deemed these issues significant because the allegations are based on the company’s in-store menu signboards and paper menus and because the dates on which “naturally raised” meats were unavailable to specific stores varied over the course of five years. The court also noted that when Chipotle experienced “naturally raised” meat shortages, it would instruct individual…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has issued a request for public comments on draft templates for tabulating epidemiology studies and data from animal studies for use by members of the agency’s Science Advisory Board Development and Reproductive Toxicant Identification Committee. Comments are requested by December 23, 2013. See OEHHA News Release, December 4, 2013. Meanwhile, during the December 5 meeting of OEHHA’s Carcinogen Identification Committee, diisononyl phthalate, a plasticizer used in food-contact materials, and butyl benzyl phthalate, a chemical used in food conveyor belts, were discussed as candidates for addition to the Proposition 65 list of chemicals known to the state to cause cancer. See Proposition 65 News, December 5, 2013.
A federal court in California has given preliminary approval to the settlement of a nationwide class alleging that Cytosport, Inc. misleads consumers by representing that its Muscle Milk® Ready-to-Drink products are healthy and nutritious when they actually contain the same amount of calories and almost as much fat as a doughnut. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., order entered November 18, 2013). Additional information about the settlement and litigation appear in Issue 475 of this Update. The court has scheduled a May 15, 2014, final approval hearing.
A California resident has filed a putative nationwide class action against Pacific Foods of Oregon, Inc., alleging that the company falsely labels its Hemp NonDairy Beverage® products as “all natural” despite the presence of processed and artificial ingredients and misbrands them by listing as an ingredient “evaporated cane juice.” Perera v. Pac. Foods of Or., Inc., No. 13-1788 (C.D. Cal., filed November 13, 2013). Plaintiff Sadisha Perera claims that she purchased one specific beverage relying on the prominent “all natural” labeling, but seeks to represent class members who purchased a number of other hemp non-dairy products that are purportedly substantially similar. According to the plaintiff, she would not have purchased the products if she had known that ingredients, such as calcium phosphate, disodium phosphate, xanthan gum, and certain vitamins, listed on the product in smaller print, were non-natural. She claims that she did not get the benefit of the bargain…
A federal court in California has denied the motion to dismiss putative class claims that Jamba Juice falsely labels its frozen smoothie kits as “all natural,” finding that while the plaintiffs lack standing to assert claims related to products they did not buy, “they may seek to represent a class of people who have purchased those products, as long as all plaintiffs, named and absent, have standing in their own right, and as long as the prerequisites to class certification are satisfied.” Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered November 18, 2013). The court will address whether the named plaintiffs may represent the proposed class at class certification and ordered them to file their certification motion by February 3, 2014.
San Francisco Supervisor Eric Mar has reportedly unveiled a proposal for a tax on sugar-sweetened beverages (SSBs) similar to one released in late October by Supervisor Scott Weiner. Both proposals target SSB distributors, both impose a 2-cents-per-ounce tax and both reportedly expect to raise $30 million annually to fund health and nutrition programs to combat diabetes and other health issues allegedly associated with consumption of soft drinks, energy drinks and other SSBs. According to a news source, Weiner and two other supervisors are co-sponsoring Mar’s legislation, but Mar said all four supervisors will work together to combine both proposals into one piece of legislation that they plan to put before voters in November 2014. See SFGate.com, November 22, 2013.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has changed the basis for listing 1,2-dibromo-3 chloropropane (DBCP), an agricultural fumigant that persists in groundwater despite being banned from use by the U.S. Environmental Protection Agency in 1979. “Based on changes to certain federal regulations that affect the bases for the original listings, OEHHA has accordingly changed the bases for listing these chemicals,” according to the agency. DBCP was originally added to the Prop. 65 list of chemicals known to the state to cause reproductive toxicity in 1987 under the Labor Code, and its listing date will remain the same. Another chemical subject to the notice is ethylene oxide, which is used to make the raw material (PET) in plastic bottles. See OEHHA Press Release, November 21, 2013. Issue 505
Subject to court approval, Frito-Lay will pay $1.6 million to settle wage-andhour claims filed on behalf of current and former employees who deliver its products to stores and arrange the store displays. Elliott v. Rolling FritoLay Sales, LP, No. 11-1730 (C.D. Cal., filed November 9, 2011). A hearing on the plaintiff’s motion for preliminary approval will be held December 23, 2013. The plaintiff alleged that Frito-Lay did not pay all the wages owed for overtime hours worked, provide duty-free meal periods and rest breaks, provide accurate itemized wage statements, or pay all wages due on cessation of employment to its route sales associates (RSAs), merchandisers and detailers. According to the plaintiff, Frito-Lay calculated overtime pay “using an illegal fluctuating workweek rather than California’s mandated forty hours workweek. The effect of utilizing the fluctuating workweek is that the more hours Plaintiff and RSAs work in excess of forty hours, the lower their…
California residents have filed a putative class action against Whole Foods Market, alleging that the company misleads consumers by labeling certain snack products as “All Natural” because they contain “the synthetic chemical ingredient Sodium Acid Pyrophosphate, among other synthetic ingredients (e.g., Maltodextrin).” Garrison v. Whole Foods Mkt., Inc., No. 13-5222 (N.D. Cal., filed November 8, 2013). Seeking to certify statewide and nationwide classes, the plaintiffs claim that they relied on the truthfulness of the “product label’s promise that these Products were ‘All Natural,’” paid a price premium over products that are not all natural, “ingested a substance that was other than what was represented,” and “ingested a product that did not bring the health benefits Defendant promised.” The products at issue include mini muffins, soft-baked cookies and an array of gluten-free products, including apple pie, cheddar biscuits, corn bread, cookies, and cupcakes. While the plaintiffs mention various claims that the…
