Seeking to certify a nationwide settlement class, excluding California consumers, in litigation against the company that makes the hazelnut spread Nutella®, two named plaintiffs alleging deceptive product marketing have filed their brief in support of preliminary approval of a class settlement. In re: Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J., brief filed January 10, 2012). According to the plaintiffs, the company has agreed to cease the advertising at issue, begin a revised and corrective labeling and advertising campaign, change its website, and establish a $2.5 million settlement fund. Under the proposed agreement, settlement class members could submit claims for $4 per jar purchased during the class period and recover up to a maximum of $20. Nutella would also apparently agree not to oppose class counsel fees less than $3 million. According to the plaintiffs’ brief, similar litigation pending in California is also being settled. Twelve named plaintiffs in four…
Tag Archives California
According to news sources, the Center for Food Safety, which lost its challenge to the U.S. Department of Agriculture’s (USDA’s) decision to deregulate without restriction genetically engineered (GE) alfalfa, plans to appeal the matter to the Ninth Circuit Court of Appeals. A federal court in California determined on January 5, 2012, that the law does not require the agency to “account for the effects of cross-pollination on other commercial crops” in assessing whether a new crop poses risks. U.S. District Judge Samuel Conti also reportedly said that USDA lacks the authority to require a buffer zone between GE crops and conventional or organic crops. Noting that the Environmental Protection Agency (EPA) has approved the use of glyphosate on Roundup Ready® alfalfa, Conti further observed, “If plaintiffs’ allegations are true, then it is disturbing that EPA has yet to assess the effects of glyphosate on most of the species found near…
A California resident who claims economic injury from purchasing Frito-Lay snack and chip products advertised as “All Natural” while allegedly containing genetically engineered (GE) corn and vegetable oil seeks to certify a nationwide class in a consumer fraud action filed in a California federal court. Gengo v. Frito-Lay N. Am., Inc., No. 11-10322 (C.D. Cal., filed December 14, 2011). According to the complaint, the company’s tortilla chips, sun chips and multigrain snacks are prominently labeled as “made with ALL NATURAL ingredients.” Because they are instead purportedly made with corn, soybean and canola oils “made from genetically modified plants and organisms,” the plaintiff contends that “she did not get the ‘all natural’ Tostito's and SunChip’s products that were advertised and she paid for.” Alleging violations of the California Business & Professions Code (misleading advertising and unfair competition) and Consumers Legal Remedies Act, breach of express warranty, and violation of the Magnuson-Moss…
A California resident is seeking to certify a nationwide class in a lawsuit alleging that Walgreens Co. 100% Grape Juice and 100% Apple Juice contain “dangerously high levels” of lead and arsenic. Boysen v. Walgreen Co., No. 11-6262 (N.D. Cal., filed December 13, 2011). According to the complaint, the levels of lead and arsenic in these beverages are higher than FDA limits on these chemicals in bottled water, and the company fails to disclose information about the contaminants on product labels or in advertising. The plaintiff alleges that California includes lead and arsenic on the list of those substances known to the state to cause cancer or reproductive harm, but does not otherwise include a Proposition 65 claim. Alleging unfair business acts or practices and false or misleading advertising under California law, breach of implied warranty, and unjust enrichment, the plaintiff seeks restitution; actual, statutory and punitive damages; injunctive relief; attorney’s…
A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.” A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did…
According to a news source, the company that makes the hazelnut spread Nutella®, which is advertised as part of a healthy breakfast for children, has reached a settlement in the class action certified by a federal court in California last month. In re Ferrero Litig., No. 11-205 (S.D. Cal., minute entry November 28, 2011). A docket notation reportedly indicates that the parties settled the claims during a November 28, 2011, mandatory settlement conference and will “submit a joint motion for preliminary approval of the class settlement no later than December 19, 2011.” Additional details about the court’s class certification order appear in Issue 418 of this Update. The plaintiffs had alleged that the product contains “dangerous levels of fat and sugar.” See BNA Product Safety & Liability Reporter, December 5, 2011.
According to a news source, Pom Wonderful LLC, which was seeking $18.1 million in lost sales from Ocean Spray Cranberries Inc. for falsely selling a pomegranate juice product with just trace amounts of pomegranate juice, lost its case following less than two hours’ deliberation by a federal jury. Pom Wonderful LLC V. Ocean Spray Cranberries Inc., No. 09-00565 (C.D. Cal., verdict reached December 6, 2011). The trial apparently became a battle of experts who cited conflicting statistics on whether Ocean Spray misled consumers about the quantity of pomegranate juice in its Cranberry & Pomegranate® juice blend, which evidently contains mostly grape and apple juice. Pom Wonderful sought to show that Ocean Spray took advantage of Pom’s extensive medical research into the purported health benefits of pomegranate juice. The company has reportedly lost two other consumer deception cases filed against Welch Foods Inc. and Tropicana Products Inc. See The National Law…
A federal judge in California has reportedly dismissed a putative class action against the manufacturer of melatonin-laced brownies marketed as a relaxation and sleep aid. According to media sources, the plaintiff alleged that HBB LLC failed to disclose the potential effects of its Lazy Larry® or Lazy Cakes® baked goods, including “extreme fatigue, exhaustion and slurred speech.” The products have also come under fire from lawmakers and the Food and Drug Administration, which in August 2011 warned the company that the brownies were adulterated under federal law. Despite the ongoing debate over whether the brownies are conventional food or a dietary supplement, U.S. District Judge Manuel Real concluded that the product packaging adequately displayed its contents. “It is undisputed that the packaging on the product accurately disclosed the quantity of melatonin in each serving as well as the relevant serving size [and] that the product contained a disclaimer of the…
A federal court in California has dismissed without prejudice a proposed class action alleging that ConAgra Foods misrepresented its Wesson cooking oils as “100% Natural” when they contain genetically modified (GM) ingredients. Briseño v. ConAgra Foods, Inc., No. 11 05379 (C.D. Cal., order entered June 28, 2011). Seeking to certify a nationwide class of consumers, the plaintiff sought declaratory and injunctive relief, compensatory damages, restitution, disgorgement, attorney’s fees, and costs, as well as an order requiring ConAgra to disclose the presence of GM ingredients and/or remove the “100% Natural” marketing claims from its products. Additional details about the complaint appear in Issue 400 of this Update. Ruling that the complaint failed to satisfy procedural rule requirements, the court found that the plaintiff’s general allegations “about when he purchased the product, where he purchased it, and how he was made aware of ConAgra’s representations about [sic] do not afford ConAgra adequate opportunity…
Seeking to certify a nationwide class of consumers, a California resident has filed consumer fraud claims against a company that makes numerous breakfast-, dessert- and bread-mix products promoted as “All Natural,” while containing purported synthetic ingredients, such as ascorbic acid, disodium phosphate, potassium carbonate, and sodium acid pyrophosphate. Larsen v. King Arthur Flour Co., Inc., No. 11-5495 (N.D. Cal., filed November 14, 2011). The complaint focuses on 64 specific products carrying “All Natural” labels and identifies which alleged synthetic ingredient is contained in each. The plaintiff alleges that she “did not receive the ‘All Natural’ baking mixes she bargained for . . . and has lost money as a result in the form of paying a premium for King Arthur’s Mixes because they were purportedly all natural rather than paying the lesser amount for non-natural alternatives.” The complaint, which also seeks to certify a sub-class of California consumers, alleges common…
