California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has requested comments on proposed changes to the requirements pertaining to scientific experts appointed to Proposition 65 (Prop. 65) advisory committees by the governor. The proposed revisions would specify the expertise required—completion of a doctoral degree and research experience in an area of specialization, along with demonstrated “ongoing expertise in the conduct of advanced scientific work of relevance to the identification of carcinogenic chemicals [or “that pose reproductive or developmental hazards”] using generally accepted and scientifically valid principles and methodologies.” The proposal would also remove certain financial disclosure provisions now redundant given the addition of advisory committee members to OEHHA’s Conflict of Interest Code. Comments are requested by December 9, 2013. Issue 501
Tag Archives California
A California state court has denied the defendant’s request that it stay a case alleging that the company failed to warn consumers of the presence of lead in its snack bars in contravention of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Research Ctr., Inc. v. Clif Bar & Co., No. 13-532935 (Cal. Super. Ct., San Francisco Cty., minutes entered October 16, 2013). Additional details about the suit appear in Issue 492 of this Update. Clif Bar & Co. sought the stay pending the outcome of an appeal from an August 2013 determination that Dole Food Co., Gerber Products Co. and other food makers were not required to warn consumers about lead occurring naturally in their products at levels lower than the state threshold. According to the company, it would waste time and money to proceed in a case that has already cost millions to…
A federal court in California has denied the request of General Mills, Inc. to stay the proceedings in three putative class actions alleging that it misleads consumers by promoting various products as “100% Natural” given ingredients that are genetically modified or highly processed, such as high-fructose corn syrup, high-maltose corn syrup and maltodextrin. Rojas v. General Mills, Inc., No. 12-5099 (N.D. Cal., order entered October 9, 2013); Bohac v. General Mills, Inc., No. 12-5280, and Janney v. General Mills, Inc., No. 12-3919 (N.D. Cal., orders entered October 10, 2013). So ruling, the court rejected the defendant’s request that it apply the primary jurisdiction doctrine, finding that (i) the issue of whether a reasonable consumer would be misled by the company’s product promotions was within the court’s purview, and (ii) it did not appear the U.S. Food and Drug Administration was inclined to decide anytime soon what the term “natural” encompasses. In Rojas,…
A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
A federal court in California has preliminarily approved the settlement of shareholder claims that Diamond Foods, Inc. “deliberately understated the costs of walnuts and improperly accounted for payments made to walnut growers to increase apparent profits and maintain higher share prices” in anticipation of the anticipated purchase of Pringles with company stock. In re Diamond Foods, Inc. Securities Litig., No. 11-5386 (N.D. Cal., order entered September 26, 2013). Additional details about the litigation appear in issues 464 and 482 of this Update. Under the terms of the agreement, the defendants will pay to the class $11 million and distribute 4.45 million shares of Diamond common stock—valued at $85.1 million as of August 2013. According to the court, while the maximum aggregated damages totaled some $430 million, the settlement is reasonable in light of “Diamond’s weakened financial condition.” It apparently has just $7.2 million in cash and cash equivalents and carries…
A federal court in California has denied the motion to dismiss filed in a putative nationwide class action alleging that Blue Diamond Growers misled consumers by labeling its almond milk products and snack foods as “all natural” and representing that they contain “evaporated cane juice,” (ECJ) in violation of federal labeling requirements incorporated into state law. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., San Jose Div., order entered October 2, 2013). The court determined that the claims were not preempted by federal law or the primary jurisdiction doctrine, the plaintiff had standing to pursue claims regarding substantially similar products that he did not purchase, the claims were pleaded with sufficient particularity, and the defendant’s conflict-of-laws challenge was premature.
A federal court in California has dismissed with limited leave to amend the second amended complaint filed on behalf of a putative nationwide class against Welch Foods, alleging that the company’s juice, beverage, spread, and jelly labels and Website violate California labeling law by including “no sugar added,” “all natural,” “no artificial flavors,” and “high in antioxidants” statements. Park v. Welch Foods, Inc., No. 12-6449 (N.D. Cal., order entered September 26, 2013). Agreeing that the complaint sounded in fraud and must comply with the heightened pleading standard of Federal Rule of Civil Procedure 9, the court noted that “Welch is after the who, what, where, when, and how surrounding the circumstances in which Plaintiffs were misled.” The company apparently argued that “portions of the complaint are generously and blindly appropriated from similar complaints filed in this district,” and that a 15-page limit would be appropriate. Still, “Welch wants to know specifically…
Calling it “ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (N.D. Cal., decided September 26, 2013). The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injury-in-fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S.…
A California resident has filed a putative class action on behalf of statewide and nationwide classes alleging that Safeway, Inc. labels and promotes its Open Nature waffle products as “100% Natural” while using the synthetic chemical preservative, alternatively referred to as sodium acid pyrophosphate and disodium dihydrogen pyrophosphate, as an ingredient. Richards v. Safeway, Inc., No. 13-4317 (N.D. Cal., filed September 18, 2013). According to the plaintiff, the chemical “has various applications—from its use in leather treatment to remove iron stains on hides during processing, to stabilizing hydrogen peroxide solutions against reduction, to facilitating hair removal in hog slaughter, to feather removal from birds in poultry slaughter, to use in petroleum production.” According to the plaintiff, the ingredient is not listed on the front of the package with the other ingredients. Claiming that he relied on the company’s “100% Natural” claims in purchasing products for which he paid a premium, the…
