A federal court in Colorado has dismissed the defendants’ post-trial motions for judgment as a matter of law or for a new trial thus upholding a $7.5 million jury award to plaintiffs who alleged personal injury from exposure to the diacetyl in microwave popcorn consumed at home. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., order entered April 10, 2013). The court scheduled an April 18 hearing on post-trial motions to amend the judgment and for an award of attorney’s fees and costs. According to the court, in light of conflicting evidence as to the defendants’ knowledge about purported health effects from diacetyl exposure and whether non-workplace exposures are sufficient to cause injury, a reasonable jury could conclude that the defendants knew about the risk and failed to warn consumers about it. The court also found the punitive damages appropriate because “a reasonable jury could conclude that the Defendants knew…
Tag Archives California
Two California residents who recently sued Trader Joe’s for allegedly misbranding certain foods by using “organic evaporated cane juice” on its product labels have filed a putative nationwide class action against a yogurt company with similar allegations. Gitson v. Clover Stornetta Farms, Inc., No. 13-1517 (N.D. Cal., filed April 4, 2013). Details about the Trader Joe’s lawsuit appear in Issue 477 of this Update. The named plaintiffs contend that the defendant markets some 14 different flavors of its yogurt products, all of which list “organic evaporated cane juice” as an ingredient on their labels “in violation of a number of labeling regulations.” They cite Food and Drug Administration (FDA) guidance, warning letters and an open letter to demonstrate that use of this term for a yogurt sweetener is “illegal.” The plaintiffs also target the company’s websites for their alleged used of “illegal claims.” According to the complaint, they relied on…
A federal court in California has dismissed consumer-fraud putative-class claims filed in a first amended complaint against the Ghirardelli Chocolate Co., alleging violations pertaining to white chocolate products that the named plaintiff did not purchase. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., order entered April 5, 2013). Details about a similar order entered as to the original complaint appear in Issue 465 of this Update. While the court disagreed with the defendant that the products were dissimilar because its label description—“Ghirardelli® Chocolate”—is like a Dunkin’ Donuts logo used on products, such as coffee, that are clearly not donuts, the court found that “an ‘unlawful’ claim based on ‘chocolate’ necessarily reaches back to the FDA definition. Identity labeling of food requires—under the plain language of the regulation that the statement of identity of the commodity on the principal display panel of a food in package form be ‘the name…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added bisphenol A (BPA) to the “list of chemicals known to the State to cause reproductive toxicity for purposes of Proposition 65” (Prop. 65). The listing, which will require warnings to consumers, took effect April 11, 2013. Failure to provide the warnings can result in significant financial penalties, and alleged violations can be enforced by private citizens. OEHHA based its determination on a National Toxicology Program report which concluded that the chemical “causes reproductive toxicity (developmental endpoint) at high doses.” BPA is commonly found in cash register receipts, CDs and DVDs, and food packaging material, including plastic containers and bottles, and metal cans and lids. When OEHHA proposed listing the chemical, it also proposed adopting a maximum allowable dose level (MADL) of 290 micrograms per day. Additional information about the MADL proposal appears in Issue 468 of this Update. When…
A Connecticut-based law firm has filed Proposition 65 (Prop. 65) lawsuits against three companies that make food extracts and flavorings, alleging that they fail to disclose the presence of 4-Methylimidazole (4-MEI), a substance known to California to cause cancer. Leeman v. Adams Extract & Spice Co., LLC, No. 13-529493; Leeman v. McCormick & Co., Inc., No. 13-529494; Leeman v. Farmer Bros. Co., No. 13 529495 (Cal. Super. Ct., San Francisco Cty., filed March 13, 2013). Named plaintiff Whitney Leeman claims to hold a doctorate in environmental engineering and seeks “to promote awareness of exposures to toxic chemicals in products sold in California.” She provided 60-day notices of violation to the companies in December 2012 concerning their alleged failure to warn consumers about 4-MEI exposure. The products specifically named in the complaints are Adams’ “Extract Maple Imitation Maple Flavor,” McCormick’s “Culinary Imitation Maple Flavor” and “Culinary Caramel Color,” and Farmer’s “Sierra Brand…
According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
A federal court in California has dismissed in part the first amended complaint in a putative class action against Frito-Lay and PepsiCo, alleging that the companies falsely advertised and labeled their products as “All Natural,” “0 Grams Trans Fat,” “No MSG,” “low sodium,” “healthy,” and with other unspecified health claims. Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered April 1, 2013). Dismissed with prejudice were claims that the companies breached warranties under the Magnuson-Moss Warranty Act and the Song Beverly Consumer Warranty Act. Among the claims that the plaintiffs will be allowed to amend are the allegations against PepsiCo, dismissed due to insufficient pleading; allegations involving products not specifically named or described in the complaint; and a claim for restitution based on unjust enrichment, which should have been pleaded in the alternative. To the extent that the plaintiffs based their unfair, false and deceptive advertising claims…
A federal court in California has decertified and entered summary judgment against a statewide class alleging that AriZona Iced Tea beverages with “All Natural,” “100% Natural” and “Natural” labels violated state consumer protection laws because they contain high fructose corn syrup (HFCS) and citric acid, ingredients alleged by the plaintiffs to be man-made. Ries v. AriZona Beverages USA LLC, No. 10 01139 (N.D. Cal., decided March 28, 2013). Additional information about this case and similar litigation before a New Jersey court appears in issues 360, 408 and 463 of this Update. According to the court, the plaintiffs failed to produce any evidence or timely identify any expert who could prove that HFCS and citric acid are not natural. They claimed that they would be able to do so during the “merit state of discovery,” but failed to produce such evidence within the court’s discovery deadlines. Nor, according to the court,…
The California Assembly’s Environmental Safety and Toxic Materials Committee has scheduled an April 16, 2013, hearing on a bill (A.B. 227) intended to give small business owners two weeks to correct a purported violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) without incurring any liability under the law. The measure was introduced by Assemblyman Mike Gatto (D-Silver Lake) at the request of a coffeehouse owner who received a 60-day legal notice after he started serving alcoholic beverages without the requisite Prop. 65 warning to customers about chemicals, such as alcohol, known to the state to pose a cancer or reproductive health risk. If the letter recipient demonstrates to the satisfaction of a city attorney, local district attorney or state attorney general that the violation has been corrected, no further enforcement action could be taken. As currently drafted, the bill would provide a safe harbor…
Three California residents have filed a putative class action against food retailer Trader Joe’s in federal court, alleging three different types of misleading labeling claims: using the terms “evaporated cane juice” or “organic evaporated cane juice,” identifying as “natural” or “no added coloring or preservatives” foods that contain added preservatives and artificial colors, and representing non-dairy calcium products as “milk.” Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., filed March 25, 2013). The plaintiffs claim that the company’s “labeling, advertising and marketing as alleged herein are false and misleading and were designed to increase sales of the products at issue. Defendant’s misrepresentations are part of an extensive labeling, advertising and marketing campaign, and a reasonable person would attach importance to Defendant’s misrepresentations in determining whether to purchase the products at issue.” The complaint outlines the applicable Food and Drug Administration (FDA) regulations that the defendant allegedly violated, noting that…
