The parties to putative nationwide class actions alleging that Unilever U.S., Inc. falsely advertised that its margarine spreads, including Country Crock® and I Can’t Believe It’s Not Butter®, were good for cardiovascular health are seeking final court approval of a non-monetary settlement that will require the company to remove the trans fat from its products. Rosen/Red v. Unilever U.S., Inc., Nos. 09-02563, 10-00387 (N.D. Cal, joint motion filed June 6, 2011). Class counsel will receive up to $490,000 in fees if the settlement is approved, and the named plaintiffs will receive up to $4,500. Class members will give up their right to any other equitable or monetary relief. The joint motion contends that the product reformulation is a substantial benefit to class members because the company is “the world’s leading manufacturer of margarine” and that requiring the company to do this “will substantially benefit its customers and will encourage competitors to…
Tag Archives California
A federal court in California has denied Safeway, Inc.’s motion to dismiss or stay proceedings alleging that it has an obligation to use information in its loyalty card customer database to provide email notice about produce recalls ordered by the Food and Drug Administration (FDA) or U.S. Department of Agriculture. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 13, 2011). Additional details about the case, which was first filed in state court, appear in Issue 380 of this Update. The grocery company argued that the “primary jurisdiction doctrine” or “equitable abstention” required the court to dismiss or stay the litigation “until and unless regulatory agencies have had the opportunity to consider and adopt appropriate rules governing the obligations a grocery store has with respect to providing its customers notice of such recalls.” According to Safeway, the Food Safety Modernization Act requires FDA to develop notice guidelines by…
The Los Angeles Unified School District has reportedly removed flavored milk from school menus in an effort to combat rising rates of childhood obesity. The school board approved a five-year, $100 million dairy contract excluding chocolate and strawberry milk in favor of low-fat and nonfat plain milk, and soy and Lactaid products. Beginning in the 2011-12 school year, the menu overhaul will also include more vegetarian and ethnic fare and eliminate corn dogs, chicken nuggets and other breaded items. See Los Angeles Times, June 15, 2011.
A California court of appeal has ruled valid the methods by which the state updates the list of chemicals known to cause cancer or reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Cal. Chamber of Commerce v. Brown, No. A125493 (Cal. Ct. App., decided June 6, 2011). Products containing these chemicals must be labeled with warnings to consumers. The law requires the state to update the Prop. 65 list annually and authorizes Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA) to add chemicals by one of three methods, including one specifically targeted in the lawsuit. The Chamber of Commerce challenged the method that requires adding to the list those chemicals identified under the Labor Code as causing cancer or reproductive toxicity. According to the Chamber, this method could be used to place chemicals on the initial list only. It sought a declaration to this effect…
A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 (N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied. Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If…
A federal judge in California has granted class certification in a suit alleging that Diamond Foods, Inc. misbranded its shelled walnut products and misled consumers by using “express and implied statements about the positive effects of omega-3 fatty acid consumption on health.” Zeisel v. Diamond Foods, Inc., N0. 10-01192 (N.D. Cal., decided June 7, 2011). The labels at issue apparently featured a heart symbol banner with the phrase “Omega 3 2.5 g per serving” and a structural claim about the omega-3 in walnuts, as well as a qualified health claim approved by the Food and Drug Administration (FDA). After FDA issued a February 2010 warning letter about these so-called combination claims, a consumer filed a complaint alleging that Diamond used language not authorized by FDA and that its products “did not provide the health benefits that were claimed on the package labels.” Plaintiff then moved to certify a class of all…
A federal court in California has reportedly dismissed without prejudice putative class claims filed against General Mills Inc. alleging that the company falsely conveyed to consumers that its Total Blueberry Pomegranate® cereal product contained real fruit. Dvora v. Gen. Mills Inc., No. 11-1074 (C.D. Cal., dismissed May 16, 2011). According to a news source, the court determined that the plaintiff’s state-law claims were preempted by federal product-labeling laws that allow a manufacturer to use a fruit’s name and image to describe a flavor even if the product contains no fruit. The claims were apparently based on allegations that the product was falsely labeled “naturally and artificially flavored” and the packaging was misleading. The court disagreed, saying, “If you look at the ingredients table, blueberry and pomegranate aren’t there. So I don’t understand how a reasonable consumer is somehow tricked into thinking it contains blueberry and pomegranate.” The court also said…
The California Senate’s Business, Professions and Economic Development Committee has reportedly passed a bill (S. 380) that would permit the Medical Board of California to “set content standards for any educational activity concerning a chronic disease that includes appropriate information on the impact, prevention, and cure of the chronic disease by the application of changes in nutrition and lifestyle behavior.” The legislation would amend Section 2190 of the Business and Professions Code that deals with mandatory continuing medical education and authorize the board “to also set content standards for an educational activity concerning chronic disease, as specified.” See John McDougall Press Release, May 16, 2011. Backed by the American College of Lifestyle Medicine and the Physicians Committee for Responsible Medicine, the bill was evidently authored by John McDougall, a physician known for emphasizing the role of diet in preventing chronic disease. McDougall currently appears in the film “Forks over Knives,”…
The Metzger Law Group has filed a lawsuit under the Safe Drinking Water and Toxic Enforcement Act (Prop. 65) on behalf of the Council for Education and Research on Toxics (CERT), seeking an order to require coffee makers and retailers to warn consumers that coffee contains acrylamide, a chemical known to the state to cause cancer. CERT v. Brad Berry Co., Ltd., No. BC461182 (Cal. Super. Ct., Los Angeles Cty., filed May 9, 2011). The defendants include manufacturing companies, coffee shops and major food retailers. Raphael Metzger and CERT have filed a number of Prop. 65 lawsuits, including claims against fast-food restaurants, for failing to warn consumers about the acrylamide in fried and baked potatoes. Acrylamide, formed when certain foods are roasted, baked or exposed to high-temperature cooking processes other than boiling or steaming, has been listed as a carcinogenic chemical in California since 1990, but was not discovered in…
A federal court in California has denied without prejudice the motion of Ferrero U.S.A., Inc. to transfer a consolidated consumer-fraud class action involving its Nutella® spread to a New Jersey district court. In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided May 11, 2011). According to the court, the convenience of the parties and witnesses and the interests of justice would best be served by allowing the plaintiffs to remain in their chosen jurisdiction. The court noted that similar litigation is pending in New Jersey, but that case was filed after the California lawsuits, “likely giv[ing] the cases in this district priority.” Additional details about the case can be found in Issue 380 of this Update.
