A federal court in California has dismissed with prejudice a putative class action filed in March 2012 against the companies that make a line of SoBe® beverages known as 0 Calories Lifewater®. Hairston v. S. Beach Beverage Co., Inc., No. 12-1429 (C.D. Cal., decided May 18, 2012). Further details about the case appear in Issue 429 of this Update. According to the court, state-law consumer-fraud claims based on the use of fruit names to describe the different Lifewater flavors and the use of common vitamin names instead of the vitamins’ chemical names are preempted by federal law which allows both types of labeling. Food and Drug Administration (FDA) regulations, said the court, “explicitly permit manufacturers ‘to use the name and images of a fruit on a product’s packaging to describe the characterizing flavor of the product even where the product does not contain any of that fruit, or contains no fruit…
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JibJab Media Inc., a digital media company known for its photo cut-out animated videos sometimes used as political satire, has filed a trademark infringement suit against White Castle, alleging that the fast-food chain has infringed its trademarks by launching a social media ad campaign called “Jib Jab Chicken Ring” to promote its “chicken rings” menu item. JibJab Media Inc. v. White Castle Mgmt. Co., No. 12 4178 (C.D. Cal., filed May 14, 2012). According to the complaint, JibJab allows paid subscribers “to personalize videos and images by uploading digital photos and inserting images of faces into JIBJAB® content.” White Castle allegedly named its promotion with the JIBJAB mark, and its online application “copies the look and feel of JibJab’s cut-out animation style and further mimics JibJab’s personalized content by offering users the ability to upload digital photos and insert faces into these video templates.” White Castle also allegedly “explicitly announced that…
A California resident has filed a putative class action against a company that sells Greek-style yogurt products labeled with the terms “evaporated cane juice,” “All Natural Ingredients” or “Only Natural Ingredients,” claiming that they are false and misleading. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., filed May 14, 2012). According to plaintiff Katie Kane, the company includes on the ingredients list for some of its yogurt products the term “evaporated cane juice,” which the Food and Drug Administration (FDA) has warned other companies is false and misleading, and uses phrases containing the word “natural” despite making the yogurt with artificial ingredients, flavorings and colorings, such as “fruit or vegetable juice concentrate.” She contends that these product representations “mislead consumers into paying a premium price for inferior or undesirable ingredients” and “render products misbranded under federal and California law.” Seeking to certify a statewide class of consumer, the plaintiff alleges…
A federal court in California has dismissed several of the claims brought in a putative class action against General Mills, alleging that the company misleads consumers with the package labeling for its Fruit Roll-Ups® and Fruit by the Foot® products. Lam v. General Mills, Inc., No. 11-5056 (N.D. Cal., order entered May 10, 2012). Additional details about the litigation, in which the Center for Science in the Public Interest is representing the plaintiffs, appear in Issue 414 of this Update. The court agreed with General Mills that label statements about the products’ flavorings, i.e., “naturally flavored” and “fruit flavored,” conform to federal law, and thus state-law claims alleging that these statements are misleading or deceptive are preempted. In this regard, the court noted, “the regulation allows a producer to label a product as ‘natural strawberry flavored,’ even if that product contains no strawberries. While the regulation’s logic is troubling, the Court…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the comment deadline on its proposal to establish a maximum allowable dose level for methanol, a substance the forms naturally in fruits and vegetables when they are prepared for consumption by methods including slicing, chopping, pureeing, and juicing. At the request of the Technology Sciences Group, OEHHA has extended the deadline to June 25, 2012. OEHHA added methanol to the list of chemicals known to the state to cause reproductive toxicity (Prop. 65) in March. Additional details about the listing and proposed dose level appear in Issue 431 of this Update. See OEHHA News Release, May 17, 2012.
The Center for Environmental Health has reportedly sued several grocery chains in California alleging that independent testing has shown that the honey they were selling contains high levels of lead in violation of Proposition 65 (Prop. 65). Some of the honey purchased and tested allegedly contained lead levels more than double the legal limit. According to the center, honey suppliers sometimes use metal barrels with lead solder that can leach into the honey. It is seeking agreements that would bind the companies to use non-leaded containers for their honey and to test their supplies for lead content. See Center for Environmental Health News Release, May 2, 2012.
Seeking to certify a class of all consumers who purchased Lucerne® brand Greek yogurt from any of its parent Safeway grocery stores, a California resident has filed a complaint in state court alleging that the product is mislabeled because it is not thickened through straining but rather by the addition of milk protein concentrate (MPC). Tamas v. Safeway, Inc., No. RIC 1206341 (Cal. Super. Ct., Riverside Cty., filed April 27, 2012). According to the complaint, MPC “is essentially a blend of dry dairy ingredients,” often imported and used to increase protein ratios in dairy products; it is allegedly not among “generally recognized as safe” food additives listed by the Food and Drug Administration (FDA). “Thus,” the plaintiff claims, “using MPC in any human food constitutes adulteration.” The plaintiff also alleges that the product does not meet FDA’s standard of identity for yogurt products. The plaintiff contends that she would not…
Determining that it lacks jurisdiction under the Class Action Fairness Act (CAFA) to hear state-law claims alleging consumer fraud in the sale of honey, a federal court in California has remanded to state court a putative class action filed against CVS Caremark Corp. Overton v. CVS Caremark Corp., No. 12-0121 (C.D. Cal., decided April 24, 2012). While the case is one of several that may be transferred to a multidistrict litigation panel (MDL No. 2374) under a motion pending before the Judicial Panel on Multidistrict Litigation, the court retained the authority to decide the jurisdiction issue. To meet its burden of showing that the lawsuit satisfied CAFA’s amount-in-controversy requirement, that is, “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,” the defendant apparently relied on the declaration of a vice president who calculated that the company sold $508,995 worth of the product every…
A California organization has reportedly gathered enough signatures to put a genetically modified organism (GMO) labeling initiative on the state ballot during the November 6, 2012, general election. According to a May 2, 2012, press release, the Committee for the Right to Know has registered 971,126 signatures, of which 555,236 must prove valid for the initiative to be included on the ballot. Submitted to the state attorney general as an initiative measure, the proposed California Right to Know Genetically Modified Food Act would require (i) raw agricultural commodities produced with genetic engineering to bear “clear and conspicuous” labels conveying this information, and (ii) all processed retail foods to display labels stating “Partially Produced with Genetic Engineering” or “May be Partially Produced with Genetic Engineering.” The act would also prohibit such foods from being marketed as “natural,” but would not apply to prepared meals sold in restaurants and intended for immediate…
The claims process under two settlements reached with the company that makes the hazelnut spread Nutella® is underway, and consumers can recover up to $20, or $4 each for up to five jars purchased during the relevant periods. In re: Ferrero Litig., No. 11-205 (S.D. Cal.) (California class, Aug. 1, 2009 – Jan. 23, 2012); In re: Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J.) (Nationwide class, except California, Jan. 1, 2008 – Feb. 3, 2012). The settlement funds available to both classes total $3.05 million, but if the claims exceed this amount, individual payments “will be reduced proportionately.” Under the settlement agreement, the company, which continues to deny any wrongdoing, will modify its product label and certain marketing statements, create new TV ads, and change the Nutella® website. The company also agreed not to object to a California fee award of $900,000 and New Jersey fee award of $3…
