California Governor Jerry Brown (D) has signed a bill (S.B. 39) prohibiting the importation, production and sale of caffeinated beer beverages in retail establishments throughout the state. Effective January 1, 2012, the legislation provides, in part, “Beer to which caffeine has been directly added as a separate ingredient shall not be imported into this state, produced, manufactured, or distributed within this state, or sold by a licensed retailer within this state.” The prohibition does not apply to beer brewed with coffee or other naturally caffeinated ingredients. Calling caffeinated beer beverages “a threat to public health,” bill sponsor Senator Alex Padilla (D-Pacoima) said the measure was adopted in response to several incidents involving underage drinkers hospitalized for alcohol overdoses after consuming caffeinated beer, which is typically packaged in large containers and has sweet, fruity flavors. “The added caffeine masks the effects of the high alcohol content, which can lead to binge…
Tag Archives California
A California woman has filed a putative nationwide class action against the company that makes Muscle Milk® beverages and protein bars, alleging that promotions touting the products as “high performance” and “nutritious snacks” are false and misleading because they contain as much fat and calories as Krispy Kreme® doughnuts. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., filed July 18, 2011). The company apparently markets the products as “a ‘meal replacement’ to provide ‘healthy sustained energy’” and allegedly “suggests that these fat-filled Products will help people lose weight, telling consumers, among other things, that the Products will help people ‘Go from cover it up to take it off.’” According to the complaint, the named plaintiff purchased the products for six months and consumed them “before workouts, after workouts, in between meals as a snack, and sometimes as a meal replacement.” She contends that she did so in reliance on the…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has announced that its Carcinogen Identification Committee will discuss whether 39 chemicals should be prioritized “for possible preparation of hazard identification materials” during the committee’s October 12-13, 2011, meeting. While no decision will be made at this meeting about adding the chemicals to California’s Proposition 65 (Prop. 65) list of substances known to the state to cause cancer, the process OEHHA is following could ultimately lead to their inclusion. Public comments on the 39 listed chemicals are requested by September 20, 2011. Among those chemicals under consideration is bisphenol A (BPA). According to OEHHA’s supporting materials, which include references to numerous carcinogenicity and genotoxicity studies, billions of pounds of BPA are produced each year in the United States, and most human exposure occurs “through the diet.” Other chemicals under consideration are those used in agriculture, such as the fungicides chloropicrin, dicloran,…
The Ninth Circuit Court of Appeals, in a divided en banc ruling, has determined that while an agreement between competitors to share revenues during a labor dispute is not immune from antitrust laws, the district court properly denied a challenge to an agreement between California supermarkets as a per se violation of the Sherman Act or on the basis of a “quick look” antitrust analysis; the Ninth Circuit found that a truncated or abbreviated review process is insufficient to determine whether this type of agreement has affected competition in the relevant market. California v. Safeway, Inc., No. 08-55671 (9th Cir., decided July 12, 2011) (en banc). Details about the court’s previous ruling that the agreement was anticompetitive appear in Issue 361 of this Update. The court’s majority “expressed no opinion on the legality of the arrangement under the rule of reason” (the traditional test for violations of federal antitrust laws) because…
A multidistrict litigation court in Missouri has denied motions for class certification in 24 transferred cases against companies that make baby bottles and sippy cups allegedly containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided July 5, 2011). The plaintiffs sought to certify various classes, including individual state classes and multi state classes as to certain claims and defendants. The court focused on the commonality, predominance and superiority prongs of class certification to conclude that differences in state laws and facts unique to each putative class member rendered the claims unsuitable for class treatment. Still, the court dismissed the requests to certify individual statewide classes without prejudice, finding it appropriate to allow the transferor courts to determine whether these classes met the certification requirements when the cases are returned to their jurisdictions. The court also indicated that it would delay remand…
A federal court in California has approved a non-monetary settlement of a class action alleging that Unilever U.S., Inc.’s health-related claims for margarine products containing trans fats were false and misleading. Rosen/ Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, decided June 21, 2011). Additional information about the settlement appears in Issue 398 of this Update. Unilever denied any wrongdoing but agreed to reformulate its stick and spread products to remove partially hydrogenated vegetable oils. A number of excluded, individual claims against the company will not be affected by the settlement.
Plaintiffs alleging that they were misled by the purportedly unsubstantiated claims Nestlé USA Inc. made about its Juicy Juice® Brain Development and Immunity products have filed an appeal to the Ninth Circuit Court of Appeals from a district court order dismissing their consolidated class action. Chavez/ Bonsignore v. Nestlé USA, Inc., No. 09-9192 (C.D. Cal., notice of appeal filed June 22, 2011). The lower court apparently gave the plaintiffs two opportunities to state a cognizable claim under California’s unfair competition and false advertising laws before dismissing the action in May 2011. According to the court, the plaintiffs’ second amended complaint “as with previous versions of the plaintiffs’ pleading in this action, is that it lumps together distinct products and multiple factual allegations without giving the reader a clear sense of which allegations support which specific claims.” See Law360, June 23, 2011.
A woman who claims she consumed Ramona’s burritos believing they were low in calories and sodium, has filed a putative class action alleging that the company mislabeled its products and that the burritos were much higher in calories and sodium than individual labels in and before 2006 and bulk labels indicated. Solomon v. Ramona’s Mex. Food Prods., Inc., No. BC463914 (Cal. Super. Ct., Los Angeles Cty., filed June 17, 2011). Concerns about obesity and an inner ear disorder exacerbated by high sodium intake allegedly led the plaintiff to purchase and consume one to two burritos daily beginning in 2006. At that time, single and multiple packages purportedly indicated that each burrito contained 170 calories and 270 mg sodium. Individual burritos were allegedly re-labeled in 2010 to 340 calories and 580 mg sodium, while the bulk packaging continued to carry the lower values. According to the complaint, “Plaintiff is informed and believes…
A Pennsylvania resident has sued Safeway, Inc. on behalf of a putative nationwide class of consumers who placed online orders for the home delivery of groceries and were allegedly charged about 10 percent more for each item in addition to a delivery fee. Rodman v. Safeway, Inc., No. 11-03003 (N.D. Cal., filed June 17, 2011). According to the complaint, Safeway assures consumers that they will pay the same prices for home-delivered goods that they would pay in the store. An “FAQ” section of Safeway’s website allegedly states “You will be charged the prices charged in the store on the day your order is picked and delivered.” Believing that the prices charged for his initial online order were high, the plaintiff apparently compared the prices for his second order with in-store prices and found that prices for 10 of 14 items included the “secret” add-on cost. Alleging breach of contract, violations…
Alleging that tissue samples from Virtue Calves veal sold for slaughter since 1995 have contained illegal drug residues, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has sued the producer and its owners in a California federal court seeking an order to stop the defendants from selling food containing an unsafe new animal drug, deemed adulterated under federal law. United States v. Virtue, No. 11-902 (E.D. Cal., filed June 22, 2011). According to the complaint, FSIS identified in defendants’ veal calves desfuroylceftiofur, gentamicin, neomycin, penicillin, tetracycline, sulfadiazine, and sulfamethoxazole. While the latter two drugs have never been approved for use on any animals, the remaining drugs have no legal tolerances approved for use in calves, according to FSIS. The agency contends, “Defendants have a long history of illegal drug residues in the edible tissues of the veal calves they sell for use as human food.” The defendants were…
