Seeking to represent a nationwide class of consumers, a California resident has filed a consumer fraud class action against the Balance Bar Co., challenging its “All Natural” claims in light of product ingredients such as ascorbic acid, cocoa (processed with alkali), glycerine, sodium citrate, and xanthan gum. Sethavanish v. Balance Bar Co., No. 11-4547 (N.D. Cal., filed September 13, 2011). She claims that she purchased different Balance Bar products since 2007 relying on the “All Natural” representations and paying more for the products “than she would have had to pay for other products that were not all natural.” In her complaint, she notes that the Food and Drug Administration does not regulate the term “natural,” but contends that the agency “has established a policy defining the outer boundaries of the use of that term by clarifying that a product is not natural if it contains color, artificial flavors, or synthetic…
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A California court of appeal has determined that a trial court erred in allowing a spinach seller to recover $12 million under the accidental contamination portion of its insurance policy. Fresh Express Inc. v. Beazley Syndicate 2623/623 at Lloyd’s, No. H035246 (Cal. Ct. App., decided September 8, 2011) (unpublished). According to the court, the produce company’s product was not the source of the E. coli outbreak linked to spinach in 2006 and led to a nationwide recall, although when it filed its insurance claim, the company had made several sourcing errors that led it to believe it could have been implicated in the outbreak. Those errors would have brought it under the terms of the insurance agreement, if the company had been the source of the E. coli contamination. Because it was not, the appeals court concluded that “the policy’s plain language refutes the trial court’s finding that ‘the E.…
A putative class action has been filed in a federal court in California against Beam Global Spirits & Wine, Inc., alleging that the company’s Skinnygirl™ Margarita beverage, purportedly created by a natural foods chef, contains sodium benzoate and other preservatives and should not be advertised and sold as a “natural” product. Bonar v. Beam Global Spirits & Wine, Inc., No. ___ (S.D. Cal., filed September 6, 2011). Alleging purely economic damages, the plaintiff seeks to certify a nationwide class of purchasers and claims that the company has violated California’s Consumers Legal Remedies Act and Business & Professions Code Section 17200 et seq., and breached express warranties. She requests compensatory and punitive damages, restitution, disgorgement, corrective advertising, injunctive relief, attorney’s fees, and costs.
After Kona coffee growers called for Safeway, Inc. to comply with Hawaiian regulations on labeling Kona coffee, a California resident filed a putative class action against the company in federal court, alleging that its Safeway Select™ “Kona Blend” coffee contains “very little Kona coffee bean content.” Thurston v. Safeway, Inc., No. 11-04285 (N.D. Cal., filed August 30, 2011). Seeking to certify nationwide or statewide classes, the plaintiff calls the company’s labeling false and misleading and contends that she “did not receive the ‘Kona Blend’ she bargained for when she purchased Safeway’s Kona Blend Coffee, and has lost money as a result in the form of paying a premium for Kona Blend coffee” instead of paying less for a non-Kona or low-Kona coffee alternative. The plaintiff alleges common law fraud, violations of various consumer fraud statutes and restitution based on quasi contract or unjust enrichment. She requests restitution, compensatory and punitive…
A California woman who alleges that certain J.M. Smucker’s products contain partially hydrogenated vegetable oil (PHVO), or trans fat, while the company falsely promotes them as healthy for consumers, has requested an October 10, 2011, hearing on her motion to certify a nationwide class. Henderson v. The J.M. Smucker Co., No. 10-04525 (C.D. Cal., first amended complaint filed August 12, 2010). According to the complaint, the plaintiff purchased the company’s Crisco Original Shortening®, Crisco Butter Flavor Shortening® and Smucker’s Uncrustables Sandwiches® relying on representations that the shortening had “50% Less Saturated Fat Than Butter” and was “All Vegetable,” and that the Uncrustables were “Wholesome,” made from “whole wheat” and “homemade goodness.” Characterizing PHVO as an “unwholesome manufactured additive,” most of the complaint focuses on the purported health effects of consuming trans fat. The plaintiff alleges violations of various consumer fraud laws and seeks injunctive relief, corrective advertising, disgorgement, the destruction of “all misleading…
A federal court in California has denied the defendant’s motion to dismiss the plaintiffs’ first amended consolidated complaint in a case involving claims that “Ferrero misleadingly promotes Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of fat and sugar.” In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided August 29, 2011). According to the court, the plaintiffs sufficiently pleaded exposure to a long-term advertising campaign and reliance on the campaign in making their purchasing decisions to confer standing on them to bring their claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act.
A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
Plaintiffs in a class action certified by a California federal court in April 2011, have filed an opposition to the defendants’ motion to decertify the class in light of a case the U.S. Supreme Court decided in June. Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., pleading filed August 22, 2011). The plaintiffs allege that class members were misled by the defendants’ representations that YoPlus® products had digestive health benefits. Details about the court’s certification ruling appear in Issue 385 of this Update. According to the plaintiffs, the defendants did not seek review of the court’s certification ruling and, in fact, agreed to the plaintiffs’ class notification program, which the court approved. The defendants purportedly assert that a U.S. Supreme Court ruling rendered 10 days later compels the court to decertify the class. Claiming that the defendants’ argument is untenable as an unwarranted expansion of the U.S. Supreme Court’s holding,…
A California resident has filed a pair of putative class actions in state court against companies that market their coconut water with purportedly exaggerated nutrient claims and overstated hydrating benefits or as a miracle cure for a host of medical problems. Shenkman v. All Mkt., Inc., No. BC 467166; Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). Seeking to certify statewide consumer classes, the plaintiff alleges intentional and negligent misrepresentation, fraud, and violations of California’s False Advertising Act and Unfair Business Practices Act. The plaintiff requests compensatory and punitive damages, disgorgement, restitution, payment to a cy pres fund, a corrective advertising campaign, and an apology. Among other matters, the plaintiff claims that One World Enterprises sells “O.N.E. Coconut Water” throughout the United States in more than 18,000 retail outlets and promotes it “as a miracle product, curing various medical problems and…
A California consumer who alleged that he gained weight while using a diet drink has reportedly failed to demonstrate that he has standing to pursue putative class consumer-fraud claims against the manufacturer because he did not keep track of his caloric intake when he used the product. Fletcher v. Celsius Holdings, Inc., No. BC439055 (Cal. Super. Ct., decided August 10, 2011). Granting the manufacturer’s motion for summary judgment, the court apparently determined that, without the caloric intake data, it would be impossible for the plaintiff to prove that the product did not, as advertised, burn up to 100 calories when consumed. According to a news source, the plaintiff alleged that he used the product while training to become a firefighter from October 2009 to January 2010, and gained 10 pounds. He also alleged that he maintained a healthy diet and a rigorous exercise regimen during this period. The court suggested that…
