A California federal court has entered a consent decree compelling the U.S. Food and Drug Administration (FDA) to designate a list of high-risk foods as required by the Food Safety Modernization Act. Ctr. for Food Safety v. Azar, No. 18-6299 (N.D. Cal., entered June 7, 2019). The decree is the result of a lawsuit brought by the Center for Food Safety and Center for Environmental Health seeking to compel the agency to promulgate a list of "high-risk foods for which additional recordkeeping requirements are appropriate and necessary to protect the public health" as well as host the list on the FDA website. The decree lists deadlines for FDA to meet—including September 8, 2020, for the designation—but allows the agency to seek extensions if it needs one "despite FDA's best efforts (meaning commitment of agency time, money, energy, and resources that FDA reasonably anticipates will result in meeting the schedule in…
Tag Archives California
California's Office of Environmental Health Hazard Assessment (OEHHA) has confirmed that coffee will not be required to carry warnings about risks of cancer or reproductive harm mandated by the state's Safe Drinking Water and Toxic Enforcement Act (Prop. 65). In a June 3, 2019, tweet, the agency stated that its "coffee regulation has been approved," finding that the chemicals "created by and inherent in roasting coffee beans or brewing coffee, do not pose a significant cancer risk." The agency indicates that the regulation will take effect October 1, 2019.
Mondelez International Inc. allegedly markets its Oreos as containing "Real Cocoa" despite containing "cocoa processed with alkali." Harper v. Mondelez Int'l Inc., No. 19-2747 (N.D. Cal., filed May 20, 2019). A plaintiff has asserted that the claim "'Always made with Real Cocoa' or 'Real Cocoa' is intended to differentiate the cocoa in the Products from cocoa that has been processed, such as cocoa powder 'processed with alkali,'" and Mondelez allegedly misleads consumers by including processed cocoa rather than unprocessed cocoa in Oreos. "No reasonable consumer would expect the cocoa in the Products to have been processed with alkalis, because 'real' represents the cocoa powder is included in its most unadulterated, non-artificial form," the plaintiff argues. "It is false, deceptive and misleading to conspicuously promote 'real cocoa' without any reference to the presence and use of alkalis either preceding or following because 'real cocoa' without any modifying terms implies the absence…
A consumer has filed a putative class action alleging that O Organics and Lucerne Foods Inc. "greatly understate" the alcohol and sugar content of their kombucha. Freedline v. O Organics LLC, No. 19-1945 (N.D. Cal., filed April 10, 2019). The plaintiff argues that "the beverages contain more than three to five times the alcohol allowed for non-alcoholic beverages" and "are sold to unsuspecting children, pregnant women, persons suffering with alcohol dependence issues, and a host of other people for whom alcohol consumption may pose a grave and immediate safety risk." The complaint cites lab testing purportedly showing levels of alcohol by volume between 1.63 and 2.63 percent. The plaintiff alleges violations of California's consumer-protection statutes as well as breach of warranties, fraud, unjust enrichment and negligent misrepresentation, and he seeks class certification, damages, restitution and attorney's fees.
A consumer has filed a putative class action alleging that Danone US Inc. markets its So Delicious Coconut Milk to health-conscious consumers using health and wellness claims despite coconut milk’s level of saturated fat. Heymsfield v. Danone US Inc., No. 19-0589 (S.D. Cal., filed March 29, 2019). The plaintiff alleges that coconut milk “is unhealthy” because it “is essentially just coconut oil in water,” and coconut oil “is mainly saturated fat.” The complaint cites studies purportedly linking saturated fat consumption and elevated risks of cardiovascular disease. Danone allegedly markets itself as “a company ‘making food that’s good for you’ and products ‘that you can feel good about sipping, biting, pouring, scooping licking and chugging throughout your day,’” the complaint argues. In addition, “the Product was expressly promoted as being able to help consumers maintain healthy bones and prevent osteoporosis.” The complaint provides screenshots of the So Delicious website, which compares…
A California federal court has rejected a settlement agreement between Trader Joe’s and consumers who alleged that the store’s tuna cans contained too much slack fill. In re Trader Joe’s Tuna Litig., No. 16-1371 (C.D. Cal., entered April 1, 2019). The court rejected the agreement on choice-of-law grounds, finding that the plaintiff failed to “conduct the required analysis” needed to apply California law to a nationwide class of purchasers. The denial was issued without prejudice, and the court granted leave to refile within 60 days of the order.
A California federal court has granted certification to a class of Mike & Ike purchasers in a lawsuit alleging that the candy boxes contain too much non-functional slack-fill. Escobar v. Just Born Inc., No. 17-1826 (C.D. Cal., W. Div., entered March 25, 2019). The plaintiff had alleged that the box of Mike & Ike candies she purchased at a movie theater contained 46 percent slack fill. Meanwhile, another California federal court denied certification to a class of consumers who purchased Gardenburger vegetarian hamburgers, finding that the damages theory proposed by the plaintiff was insufficient to calculate the amount of damages. Mohamed v. Kellogg Co., No. 14-2449 (S.D. Cal., entered March 23, 2019). The approach suggested by the plaintiff would have calculated "the percentage of the price premium" but did not include a calculation to arrive at the total amount of damages. "Plaintiff has not proposed to conduct a hedonic regression…
Tapatio Foods has filed a trademark infringement lawsuit alleging that Tiowaxy Hot Sauce is sold with a similarly designed label, confusing consumers and causing brand tarnishment to Tapatio's hot sauce. Tapatio Foods v. Alfarh, No. 19-0335 (E.D. Cal., filed March 11, 2019). Tapatio alleges that Tiowaxy's label infringes because it also features a man in a sombrero with the brand name above the image. Further, Tiowaxy contains THC—which is derived from cannabis—and Tapatio alleges that "the association of the Infringing Marks with marijuana," "a Schedule 1 controlled substance," has tarnished Tapatio's reputation. Tapatio seeks an injunction, corrective advertising, disgorgement and damages for alleged Lanham Act and California consumer-protection statute violations.
Whole Foods Market Inc. and Health-Ade LLC have agreed to pay $4 million to settle allegations that Health-Ade labels its kombucha as non-alcoholic despite containing "more alcohol than permitted for non-alcoholic beverages." Bayol v. Health-Ade LLC, No. 18-1462 (N.D. Cal., filed March 15, 2019). Under the agreement, class members can receive $4 for each bottle of kombucha purchased, with a limit of 20 claims with proof of purchase and 10 without. Health-Ade also agreed to change its formula to better control the variability of alcohol and sugar content and update its labels to notify purchasers that "[d]ue to natural fermentation, there may be trace amounts of alcohol and small pieces of culture."
Three restaurant owners, along with the California Restaurant Association (CRA) and Dart Cardboard Corp. of California, have reportedly filed a lawsuit challenging San Diego's ban on polystyrene food containers, alleging that the city failed to conduct an environmental review before instituting the ban. "The CRA has filed a legal challenge to hold city government accountable for following a legally-required process. The lack of an environmental study in San Diego prior to the city considering a ban on polystyrene food packaging is alarming," CRA stated in a tweet. "The City ignored a critical step in evaluating the environmental impact that replacement products will have at local landfills, along beaches and to air and water quality. We have all the confidence in the legal process and that the court will validate our complaint." Meanwhile, Maryland may reportedly become the first state to ban polystyrene food containers. The Maryland legislature has sent a…
