A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
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A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.” Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally…
A woman who claims that her 19-year-old son died as a result of consuming at least two 16-oz. cans of Monster Energy® drinks every day for three years has filed a survival and wrongful death action against the company. Morris v. Monster Beverage Corp., RG1368528 (Cal. Super. Ct., Alameda Cty., filed June 25, 2013). According to the complaint, the young man went into cardiac arrest on July 1, 2013, “[w]hile engaged in sexual activity with his girlfriend,” and efforts to revive him were unsuccessful. The autopsy report allegedly attributed his death to “cardiac arrhythmia due to cardiomyopathy.” The plaintiff focuses on the beverage’s caffeine and other ingredients that have purportedly been shown to produce adverse health effects, “including cardiac arrest.” The plaintiff alleges strict liability—design defect, failure to warn—negligent design, manufacture, sale, and failure to warn; concealment, suppression or omission of material facts; breach of implied warranties; punitive damages; and…
Naked Juice Co. has agreed to settle putative class claims that it falsely advertised some of its juice and smoothie products as “all natural” and not genetically modified (GMO); while denying the allegations, the company will establish a $9 million settlement fund. Pappas v. Naked Juice Co. of Glendora, Inc., No. 11-8276 (C.D. Cal., motion for preliminary approval filed July 2, 2013). Members of the putative nationwide class will each be eligible under the proposed agreement to recover a maximum of $45 dollars. The agreement will also require Naked Juice to establish a product verification program, hire or assign a quality control manager to oversee the independent testing process for the company’s product line, establish a database to allow the electronic tracking and verification of product ingredients, and modify future labeling, advertising and marketing to cease using “All Natural” and related statements.
A coalition of animal rights organizations has sued U.S. Department of Agriculture (USDA) Secretary Tom Vilsack under the National Environmental Protection Act (NEPA), claiming that the agency failed to conduct a required environmental review before granting the application of a “horse slaughter plant operator in New Mexico, bringing the nation closer to its first horse slaughter operation since federal courts and state lawmakers shuttered the last three U.S.-based plants in 2007.” Front Range Equine Rescue v. Vilsack, No. 13-3034 (N.D. Cal., San Francisco Div., filed July 2, 2013). The parties agreed to voluntarily transfer the suit to the District of New Mexico as a more appropriate venue, and the court entered an order granting the transfer on July 10, 2013. Because the defendants advised the plaintiffs that no federal inspections at horse slaughter facilities will take place before July 29, the court vacated its expedited scheduling order. In their complaint,…
A California resident has filed consumer fraud claims on behalf of a putative statewide class against a company that makes fruit juices with “No Sugar Added” statements on the product labels and without a statement that the juice is not a “low calorie” or “calorie reduced” product allegedly in violation of federal regulatory requirements. Cuzakis v. Hansen Beverage Co., No. BC513620 (Cal. Super. Ct., Los Angeles Cty., filed June 27, 2013). According to the complaint, the juices are made from fruit juice concentrate and thus cannot be labeled “No Sugar Added,” and with 120 calories per reference serving greater than 30 grams (“about as much as a conventional soft drink”) must include a disclosure that they are not “low calorie.” While the plaintiff alleges that he is a diabetic and must purchase products low in sugar, he does not seek damages for personal injury; rather, he claims he would not…
A federal court in California has dismissed in part and granted in part allegations in a second amended, putative class complaint filed against three food and beverage companies for alleged violations of state consumer fraud laws in the labeling claims on a plethora of products including chewing gum, juices, cookies, crackers, granola, stuffing, and cheese. Ivie v. Kraft Foods Global, Inc., No. 12-2554 (N.D. Cal., San Jose Div., order entered June 28, 2013). Information about a previous ruling in the case appears in Issue 473 of this Update. The court dismissed with prejudice (i) the plaintiff’s claim that a “natural flavors” label on Crystal Light® is misleading because the product contains artificial flavors; the court found that the two specific ingredients alleged to be “artificial” flavors are artificial ingredients and nothing in the Food and Drug Administration regulations suggests that potassium citrate and sodium citrate are flavors; and (ii) the…
A federal court in California has dismissed as preempted certain claims filed by a putative class alleging that Unilever deceptively markets “I Can’t Believe It’s Not Butter! Spray.” Pardini v. Unilever U.S., Inc., No. 13-1675 (N.D. Cal., order entered July 9, 2013). The dismissal was without prejudice, and the plaintiff has 30 days to amend her complaint. Other claims were also dismissed without prejudice because they were not sufficiently pleaded or because the plaintiff lacked standing to assert a claim under the consumer protection laws of the other states named in the complaint. A claim for unjust enrichment was dismissed with prejudice. The plaintiff claims that the product is deceptively marketed as having “0 fat” and “0 calories” when it actually contains 771 calories and 82 grams of fat per bottle. While the product label specifies that the no-fat and no-calories claim is per serving, and users are referred to…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has slated a public pre-regulatory workshop for July 30, 2013, to gather input from stakeholders “on the content of a regulation that would address Proposition 65 (Prop. 65) warnings.” According to OEHHA, the regulation, “if formally proposed and adopted, would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes if enacted.” Gov. Jerry Brown (D) has indicated his intent to amend the law in 2013. Among the proposed changes OEHHA is considering are (i) requiring, at a minimum, information in all warnings, the health effect for which the chemical was listed, how a person will be exposed and “simple information (such as washing hands) on how to avoid or reduce an exposure”; (ii) “Approved warning methods and content for use by manufacturers and retailers regarding exposures to listed chemicals in foods, including foods…
Finding the Food and Drug Administration’s (FDA’s) proposed “target time-frames” “an inadequate response to the request that the parties submit a proposal regarding deadlines that can form the basis of an injunction,” a federal court in California will require the agency to publish all proposed regulations required under the Food Safety Modernization Act by November 30, 2013. Ctr. for Food Safety v. Hamburg, No. 12-4529 (N.D. Cal., decided June 21, 2013). The court further ordered FDA to close each comment period no later than March 31, 2014, and to finalize the rules no later than June 30, 2015. The order follows the court’s determination that FDA violated the FSMA and Administrative Procedure Act by failing to comply with the food safety rulemaking deadlines established by Congress. Additional details about the litigation appear in issues 481 and 487 of this Update.
