The Ninth Circuit Court of Appeals has affirmed a lower court ruling denying the request for a preliminary injunction to halt the application of a California statute that forbids the sale of products resulting from force feeding a bird to enlarge its liver and prohibits force feeding birds to enlarge their livers beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-56822 (9th Cir., decided August 30, 2013). While the court dismissed the governor and state as defendants on the basis of immunity, it agreed with the district court that the state attorney general was not immune from suit under the Eleventh Amendment. Additional information about the lawsuit appears in issues 446 and 454 of this Update. Because the court found that the plaintiffs, out-of-state foie gras producers and a California restaurant that sold the product before the law took effect, were not likely…
Tag Archives California
A federal court in California has denied the motion to dismiss filed by J.M Smucker Co. in a putative class action alleging that it misleads consumers by labeling four of its Crisco® oil products as “All Natural” because they are purportedly made with genetically modified (GM) corn, canola and soy crops and because they are highly processed. Parker v. J.M. Smucker Co., No. 13-690 (N.D. Cal., order entered August 23, 2013). Finding that the amended complaint met the plausibility pleading standard, the court ruled that the plaintiff had standing to pursue claims as to products she had not purchased because they were sufficiently similar. In the court’s view, “They are all the same kind of product. They all have highly similar labels. Plaintiff alleges the same actionable conduct as to each of them.” The court also rejected the defendant’s contention that the claims were preempted in light of the Food…
A federal court in California has narrowed the issues in litigation filed by Monster Beverage Corp. against Dennis Herrera, San Francisco’s city attorney, granting in part and denying in part Herrera’s motion to dismiss. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., order entered August 22, 2013). Additional details about the dispute between the litigants appear in issues 461, 482 and 483 of this Update. The court rejected Herrera’s claims that Monster Beverage lacked standing to bring a declaratory judgment action as to issues raised by his threats to sue the company if it fails to change its energy drink products by reducing the caffeine levels and to alter its labeling and advertising. The court also found that the issues are ripe, stating “The dispute here is not abstract and the lawsuit is not premature. The issue here, whether Monster must comply with Herrera’s demands pursuant to California state…
A former non-exempt Anheuser-Busch brewery worker in California has filed a putative class action against the company alleging that it violated the state labor code by failing to include the value of free or discounted beer—termed “incentive pay”—in employees’ regular pay rates and thus undercompensated them by calculating overtime pay on the basis of pay rates that were too low. Controulis v. Anheuser-Busch, LLC, No. BC518518 (Cal. Super. Ct., Los Angeles Cty., filed August 16, 2013). The plaintiff also claims that the company failed to timely provide a final paycheck when employees were discharged or quit. According to the complaint, the plaintiff was terminated during the year preceding the complaint’s filing while he was on a leave of absence. Seeking to certify several classes of California employees, the plaintiff alleges failure to pay overtime wages, wage statement violations, waiting time penalties, unfair competition (that is, by underpaying its employees, the…
A federal court in California has dismissed putative nationwide class claims against The Hain Celestial Group alleging that the company’s food and beverage product labels and website mislead consumers because they (i) list the ingredient “Evaporated Cane Juice” or “Organic Evaporated Cane Sugar Juice,” (ii) are falsely labeled “All Natural” or “Only Natural,” and (iii) falsely claim to have “No Trans Fat” or other nutrient content claims. Smedt v. The Hain Celestial Group, Inc., No. 12-3029 (N.D. Cal., San Jose Div., order entered August 16, 2013). The court dismissed the statutory warranty claims with prejudice on the grounds that the food products are consumables and not covered under the state and federal laws and because food and beverage labels “do not constitute express warranties against a product defect.” The court dismissed the fraud-related claims with leave to amend within 15 days, finding that the amended complaint failed to “unambiguously specify the…
A federal court in California has dismissed a putative statewide class action alleging that Tetley USA misleads consumers by making “antioxidant, nutrient content, and health claims” for certain of its tea products; the statutory warranty claims were dismissed with prejudice, and the remaining claims were dismissed with leave to amend the complaint to comply with the plausibility pleading standard. De Keczer v. Tetley USA, Inc., No. 12-2409 (N.D. Cal., order entered August 16, 2013). According to the court, while the plaintiff acknowledged that the products at issue were consumables under the Song-Beverly Consumer Warranty Act, he “appears to argue that the product labels constitute express warranties and that the products in question therefore fall under the provisions of section 1793.35, which provides for the enforcement of express warranties on consumables. The Court rejects this argument because food labels, like the ones at issue, do not constitute express warranties against a…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has published a table providing information on the status of chemicals considered for addition to the Proposition 65 (Prop. 65) list under the authoritative bodies mechanism. “The table lists the authoritative body, the document or documents providing the basis for the possible listing, the endpoint (toxic effect) relevant to the possible listing, and the next step in the listing process. OEHHA will update this table on a regular basis.” The chemicals subject to a notice of intent to list in 2014 if criteria are met include pulegone (a flavoring agent), emissions from high-temperature unrefined rapeseed oil (used in animal feed and as a vegetable oil), nitrite in combination with amines or amides (present in foods), atrazine (a herbicide) and its metabolites, genistein (an isoflavone in soybean foods), and ethylene glycol (used in bottling). Styrene, which is used in food containers, may…
A federal court in California has issued an order granting the motion for preliminary approval of a class settlement in five lawsuits alleging that Naked Juice Co. misrepresented its beverages as “All Natural” and “Non-GMO.” Pappas v. Naked Juice Co. of Glendora, Inc., No. 11 8276 (C.D. Cal., order entered August 7, 2013). According to the court, the proposed settlement was reached after the defendant’s motion to dismiss was granted in part, extensive and contentious discovery was undertaken, and four mediation sessions occurred under the guidance of an experienced retired judge. Under the terms of the settlement, the company will pay $9 million into a settlement fund that will be used to make cash payments to class members and pay the costs of notice and settlement administration, attorney’s fees—not to exceed $3.1 million—and expenses, and incentive awards $2,500 each for four of the five named plaintiffs. Class members with purchase receipts…
A federal court in California has denied a motion to dismiss in a contract dispute between the supplier of molasses allegedly contaminated with lead and the company that used the ingredient to make licorice subject to a nationwide recall. Am. Licorice Co. v. Total Sweeteners, Inc., No. 13-1929 (N.D. Cal., order entered August 13, 2013). Relying on a sales contract it had prepared, the molasses supplier contended that the plaintiff had failed to comply with its notice provisions and therefore was precluded from seeking relief for its alleged breach. Relying on a purchase order with different terms it had prepared and issued before the first shipment under the contract, the plaintiff candy maker argued that the shipments were subject to its terms. The court was unwilling to determine as a matter of law whether the purchase order altered the terms and conditions of the contract, finding that “this issue is…
A federal court in California has determined that the U.S. Food and Drug Administration (FDA) has not met the standard for the court to issue an order amending the deadlines set forth in its June 2013 order for promulgating and finalizing implementing regulations under the Food Safety Modernization Act (FSMA). Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., order entered August 13, 2013). Information about the court’s earlier order appears in Issue 489 of this Update. Because the plaintiff agreed that the proposed sanitary transport rule deadline could be extended, however, the court granted FDA’s motion only to this extent. The proposed rule must be published by January 31, 2014, and the court will allow comment on it until May 31. The final rule must be published as originally specified—no later than June 30, 2015. The court rejected FDA’s request to extend the deadline for promulgation of the…
