A federal court in California has dismissed some of the putative class claims filed against Twining North America, Inc., alleging that the company misled consumers by labeling its green tea products as a “natural source of antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered February 25, 2013). Stricken with leave to amend are claims based on labels or products other than green tea because the named plaintiff alleged that she purchased green tea only. The court disagreed with the defendant that the state law-based claims were preempted, finding that by stating its tea is a “natural source of antioxidants,” the defendant made a nutrient content claim regulated by the Food and Drug Administration (FDA) and that the plaintiff was seeking to enforce state law identical to federal requirements. So ruling, the court cited an FDA warning letter sent to the company over its alleged “nutrient content…
Tag Archives California
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has withdrawn styrene as a potential addition to the list of substances known to the state to cause cancer by means of the Labor Code mechanism. In 2009, a state judge tentatively enjoined its listing after determining that no known evidence supported a finding that styrene is a carcinogen and that its designation as such would likely have a devastating effect on the industry. Widely used in food packaging, styrene plastics are apparently crucial to the transportation and sale of strawberries, raspberries and blueberries, state industries worth more than $1 billion. The court further ruled at the end of 2012 that OEHHA’s reliance on the International Agency for Research on Cancer’s conclusion that styrene is “possibly carcinogenic to human” was insufficient to justify its listing. OEHHA has not reportedly appealed the decision. See InsideEPA.com, February 21, 2013.
California Assembly Member Ian Calderon (D-Whittier) has introduced a bill (A.B. 682) that “would prohibit chicken or turkey sold in any state-owned or state-leased building at food concessions and cafeterias from being ‘plumped’ in any way.” The legislation defines “plumped” poultry as any such product injected with “saltwater, chicken stock, seaweed extract, or some combination thereof… to increase its weight and price.” “The practice of ‘plumping’ chicken or turkey can increase the sodium content by up to 500 percent,” states the bill, which would take effect January 1, 2014, or upon the expiration of existing vending and concession contracts. “Fresh, natural chicken should have no more than 70 mg of sodium per four ounce serving, whereas plumped chicken can contain up to 400 mg sodium. The average household of four people, because of ‘plumping’ chicken or turkey, spends approximately $127 per year on saltwater.”
Proposed legislation (S.B. 622) in California would impose a 1-cent per fluid ounce tax on sugar-sweetened beverages to finance a Children’s Health Promotion Fund. Introduced by Sen. Bill Monning (D-Carmel), the measure would apply to all sugar-sweetened beverage distributors whether their products are bottled or sold as concentrate. Intended to “discourage the excessive consumption of sweetened beverages by increasing the price of these products,” the proposal would also create a fund “allocated for the purposes of statewide childhood obesity prevention activities and programs.” To this end, the Children’s Health Promotion Fund would support, among other things, state- and community-based efforts to reduce consumption of “calorie-dense, nutrient-poor foods” and improve access to “healthy, safe, and affordable foods and beverages.” “This bill will combat the obesity crisis and ensure that our children—and future generations of Californians—are not doomed to a shorter life expectancy and can instead live longer, healthier lives,” Monning was quoted…
A federal court in California has deferred ruling on the motion to dismiss filed in a consumer protection lawsuit against R.C. Bigelow, Inc. to give the plaintiff an opportunity to amend her complaint. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered February 6, 2013). Indicating that it was inclined to allow most of her state-law claims to proceed and to dismiss her federal claims, the court counseled the defendant “that the Court did not find its arguments regarding preemption and abstention under the doctrine of primary jurisdiction persuasive.” According to the court, the plaintiff has filed claims on behalf of a putative class alleging that the company misrepresents the health benefits of drinking tea and promotes and labels its green tea products with antioxidant assertions “expressly condemned by the Food and Drug Administration [FDA].” The court found the substance of many of the plaintiff’s allegations unclear or…
A federal court in California has reportedly approved the settlement of wage-related claims in a class action filed by restaurant managers against Benihana National Corp., which owns and operates a Japanese hibachi steakhouse chain. Akaosugi v. Benihana Nat’l Corp., No. 11-1272 (N.D. Cal., settlement approved January 24, 2103). The company has apparently agreed to pay $660,000, including attorney’s fees and costs, to settle claims that it forfeited managers’ accrued vacation and failed to compensate them for it, forced them to work more than eight hours a day without paying overtime, failed to provide meal and rest breaks, and failed to provide accurate wage statements. See Mealey’s Class Actions, February 1, 2013.
General Mills has agreed to establish an $8.5 million fund to settle claims that it falsely advertised its Yo-Plus yogurt as a product that helped naturally regulate “digestive health.” Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., stipulation of settlement filed February 4, 2013). If the court approves the agreement, purchasers throughout the United States will be able to seek $4 for each unit of Yo-Plus purchased, and any unclaimed funds will be distributed to the National Consumer Law Center and Mayo Clinic. The company apparently no longer sells the products. The costs of class notice and administration, attorney’s fees and incentive awards for plaintiffs in several related class lawsuits will be deducted from the settlement fund. Recovery will be capped at 13 units of Yo-Plus yogurt per claimant, unless proof of purchase for more units purchased during the class period can be shown. A hearing for preliminary approval…
A California resident has reportedly filed a putative class action against the company that makes 5-Hour Energy® shots, claiming that “no genuine scientific research” and “no scientifically reliable studies” support the company’s claims that the product provides “any more additional benefits over a caffeine tablet or a cup of coffee.” Soto v. Innovation Ventures, LLC, No. 13-591 (C.D. Cal., filed January 28, 2013). According to a news source, the plaintiff alleges that the company overcharges consumers based on false claims and that some of the product’s ingredients may present serious undisclosed health risks. Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff apparently alleges violations of the California Consumers Legal Remedies Act and Business and Professions Code, breach of express warranty, unjust enrichment, and fraud (intentional misrepresentation and concealment of fact). See Mealey’s Class Actions, February 1, 2013.
Without admitting liability, Dole Food Co. has reportedly settled a putative class action that claimed the company misrepresented its environmental practices in Guatemala. Laderer v. Dole Food Co. Inc., No. 12-09715 (C.D. Cal., motion to dismiss filed January 26, 2013). According to the complaint, the plaintiff would not have purchased the company’s bananas or “paid as much for them,” had he known that its “production methods contaminate water supplies, destroy wetlands, cause flooding, destroy the crops of local communities, and/or cause illnesses in children.” The complaint cited company materials indicating its “unwavering commitment” to “environmental responsibility and social accountability” and alleged violation of consumer fraud laws. Under the agreement, “[i]n coordination with social programs already undertaken by Dole’s independent grower in Guatemala, Dole and the non-profit organization Water and Sanitation Health, Inc. will collaborate together on a water filter project to assist the local communities in Guatemala.” According to the company, its…
A California resident has filed a putative nationwide class action against Nestlé USA, Inc., claiming that its use of partially hydrogenated vegetable oil (trans fat) in many of its frozen pizza brands, including DiGiorno®, Stouffer’s® and California Pizza Kitchen® violates California’s Unfair Competition Law and constitutes a nuisance under California Civil Code §§ 3479-3493. Simpson v. Cal. Pizza Kitchen, No. 13-164 (S.D. Cal., filed January 21, 2013). In addition to monetary damages, she seeks an order requiring the company to “cease using artificial trans fat as an ingredient in the Nestle Trans Fat Pizzas.” While the complaint includes detailed information about the purported risks of consuming trans fats and notes that California forbids its use in schools or restaurants in amounts greater than a half-gram per serving, nowhere does she allege what quantity of trans fat is used in the defendants’ products or whether the products are mislabeled. Plaintiff Katie…
