A California egg farmer has filed a lawsuit challenging the constitutionality of Proposition 2 (Prop. 2), a voter-approved ballot initiative that, beginning January 1, 2015, will subject egg producers to criminal sanctions for confining egg-laying hens to cages preventing them from “lying down, standing up, and fully extending . . . [their] limbs” and “turning around freely.” Cramer v. Brown, No. 12-03130 (C.D. Cal., filed April 10, 2012). Contending that Prop. 2 violates his due process rights because it is vague and will result in arbitrary enforcement, the plaintiff claims that he and others will likely shut down their farms before the effective date and that the price of eggs will skyrocket for state consumers and supply shortages will occur if it goes into effect. The plaintiff also alleges that Prop. 2 violates the Commerce Clause by failing to provide local benefits and greatly burdening interstate commerce. According to the…
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California resident Tricia Ogden has filed a putative class action in federal court against Bumble Bee Foods, LLC, alleging that it misbrands its seafood products by claiming they “are an excellent and affordable source of protein, nutrients and Omega 3 fatty acids” and “Rich in Natural Omega-3.” Ogden v. Bumble Bee Foods, LLC, No. 12-01828 (N.D. Cal., filed April 12, 2012). The only injury apparently alleged is economic, i.e., “Plaintiff would have foregone purchasing Defendant’s products and bought other products readily available at a lower price,” and “Plaintiff would not have purchased Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally held or sold.” According to the complaint, such representations and labeling establish that the company’s products are drugs under federal law “because they are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” and are sold without prior Food and…
Under a court order preliminarily approving a settlement of consumer fraud claims involving purported health benefit labeling used to sell Diamond Foods walnuts, the class notification program has apparently begun. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., preliminary approval order entered January 30, 2012). The court previously certified a nationwide class of consumers who have until July 30, 2012, to opt out of or object to the settlement. Additional details about the certification ruling appear in Issue 397 of this Update. The deadline for filing a claim is September 7. While the company admits no wrongdoing, it has ceased using the disputed product labels and has removed a “Live Well” section from its website. It also agreed to cease using unqualified health claims, but reserves “the right to use the FDA-approved qualified health claim for walnuts, any language or symbols developed by or in conjunction with the American…
A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update. While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal. In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act…
Contending that snack maker Frito-Lay North America makes “improper nutrient content claims on products containing disqualifying levels of fat, saturated fat, cholesterol or sodium,” a new plaintiff has filed a putative class action against the company and its parent in a California federal court. Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., filed March 29, 2012). Several other cases have recently been filed against the company, challenging its “all natural” claims for products allegedly containing genetically modified ingredients. The new action targets the company’s “0 grams of trans fat” representations on its Lay’s Classic Chips® “despite disqualifying levels of fat that far exceed the 13g disclosure level.” The plaintiff reportedly cites Food and Drug Administration warnings to other companies “for the same type of improper 0 grams trans fat nutrient content claims at issue in this case.” See Foodnavigator-usa.com, April 4, 2012.
A federal court in California has granted in part and denied in part the motion to dismiss filed by Quaker Oats in consolidated cases alleging that the company falsely advertises products such as granola bars and instant oatmeal containing small amounts of trans fats as healthy. In re: Quaker Oats Labeling Litig., No. 10-502 (N.D. Cal., decided March 28, 2012). According to the court, the plaintiffs’ “primary contention” is that consuming “any amount of artificial ‘trans fat’ is unhealthy, and that therefore various aspects of the labeling on Quaker’s products” are false and misleading under California law. The court earlier determined that some of the claims were preempted by federal law. Additional information about the litigation appears in Issue 369 of this Update. Regarding the plaintiffs’ expanded pleadings, which complain of “various additional statements and images on Chewy Bars, Instant Oatmeal, and Oatmeal To Go Bars,” the court refused to…
Two California men who allegedly worked as cooks at a Riverside County Olive Garden have filed a putative class action as private attorneys general under the California Labor Code, claiming that they performed off-the-clock work, were not provided meal or rest breaks as required by law or paid overtime, and had the cost of shoes deducted from their paychecks. Romo v. GMRI, Inc., No. RIC1203891 (Cal. Super. Ct., Riverside Cty., filed March 19, 2012). They also claim that their employer failed to pay them promptly as required by law when they left their jobs. They seek to represent all non-exempt or hourly paid Olive Garden employees in the state. According to the complaint, the off-the-clock and overtime work the plaintiffs performed was necessitated due to the volume of work and frequent understaffing. Claiming unpaid overtime, unpaid minimum wages, non-compliant wage statements, unlawful deductions, and wages not timely paid upon termination,…
A federal court in California has refused to dismiss most of the putative class claims filed by a consumer against a company that made an alcoholic beverage containing high levels of caffeine, finding that a federal alcohol labeling law did not preempt state-law claims based on labeling or advertising and that the allegations of economic injury are sufficient to establish standing under California’s Unfair Competition Law (UCL). Cuevas v. United Brands Co., Inc., No. 11-991 (S.D. Cal., order entered March 8, 2012). The defendant manufactured and sold JOOSE®, a flavored beverage with about 125 mg caffeine and 9.9 to 12 percent alcohol, from 2007 until it voluntarily removed the product from the market in December 2010 after receiving a warning letter from the Food and Drug Administration (FDA). The plaintiff allegedly purchased the product on two occasions in April and August 2010 and subsequently filed suit alleging that the defendant violated…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added methanol to the list of chemicals known to the state to cause reproductive toxicity (Prop. 65). The listing, which is effective as of March 16, 2012, is based on the National Toxicology Program’s identification of the chemical as a reproductive toxicant. Because the chemical forms naturally in fruits and vegetables that contain pectin, OEHHA has determined that “methanol that is the by-product of naturally occurring pectin in the food is not considered an exposure under Section 25501. This applies to consumption of both unprepared and prepared fruits and vegetables.” This exception does not apply, however, where pectin is intentionally added “in the production or processing of food, or to nonfood exposures.” According to OEHHA, methanol is formed when “fruits and vegetables are physically prepared for consumption by methods that include, but are not limited to, slicing, chopping, pureeing and…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has extended until April 6, 2012, the public comment period for several chemicals, including benzophenone, a substance used in plastic packaging as a UV blocker, that the agency is considering adding to the list of chemicals known to the state to cause cancer (Prop. 65) under the Labor Code mechanism. An interested party apparently requested the extension. Because these are “ministerial listings,” OEHHA has indicated that comments should be limited “to whether the International Agency for Research on Cancer has identified the specific chemical or substance as a known or potential human or animal carcinogen.”
