The San Francisco Board of Supervisors has overruled Mayor Gavin Newsom’s (D) veto of a bill prohibiting restaurants from offering toy giveaways in children’s meals deemed too high in calories, salt or fat. Under the law, which takes effect in December 2011, restaurants can only provide toys with meals containing fewer than 600 calories and 640 milligrams of sodium, and if fat makes up less than 35 percent of the total calories. In vetoing the measure, Newsom called the legislation an “intrusive and ineffective approach” to combat the problem and “unprecedented governmental intrusion into parental responsibilities and private choices.” But Supervisor Eric Mar (D) told a news source after the November 23, 2010, veto override that parents and health advocates support the measure to help curb childhood obesity. “From the Institutes of Medicine to the World Health Organization, we know that reducing the consumption of junk food by kids could spare…
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Two California businessmen have reportedly filed a complaint in small claims court against a Marin County restaurateur, alleging that they were sprayed with hot garlic butter from an exploding snail. Chadwick St.-O’Harra, a former law student, and Steve Righetti were apparently celebrating Righetti’s birthday at a seafood restaurant, when the escargot purportedly exploded, dousing their faces and polo shirts. The men reportedly claim that the incident caused both “humiliation” and “a sense of genuine outrage” and that the restaurateur allegedly responded with “indifference” and “friggin’ rudeness.” The two were dining on a filet-and-lobster combo and a seafood medley and did not reportedly seek immediate medical treatment, choosing instead to finish their meals. According to the restaurant owner, the incident never happened and escargot does not explode. Still, some in the industry have characterized “escargot explosion” as a “rare but periodic phenomenon” that can be attributed to air bubbles trapped inside…
A California resident has filed a putative class action against Dr. Pepper Snapple Group, Inc., in federal court, alleging that the company has violated consumer protection laws in labeling and promoting its “Snapple® Acai Mixed Berry Red Tea Immunity” product because “no known clinical study . . . adequately supports Snapple’s claims.” Meaunrit v. Dr. Pepper Snapple Group, LLC, No. 10-5153 (N.D. Cal., filed November 12, 2010). Seeking to certify a class of all product purchasers, the named plaintiff alleges violations of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act, as well as breach of express warranty. She asks for restitution, disgorgement, damages, and attorney’s fees and costs in excess of $5 million. Plaintiff Julia Meaunrit and her counsel, Florida-licensed Howard Rubinstein, previously filed an unsuccessful class-action lawsuit in California against a food company alleging inadequate cooking instructions for its frozen pot pies. Details about that…
A federal court in California, presiding over two putative class actions alleging that I Can’t Believe It’s Not Butter!®, Country Crock® and other cholesterol-free margarines were falsely advertised as nutritious, has denied a joint motion for preliminary approval of a class settlement. Red v. Unilever PLC, No. 10-00387 (N.D. Cal., order filed November 16, 2010). The court was concerned about “the waiver of certain damages claims and need for opt-out in a Federal Rule of Civil Procedure 23(b)(2) injunctive class where the proposed class received no monetary relief.” Scheduling a settlement hearing for the parties with a special master on or before December 13, 2010, the court allowed the parties to continue negotiating and expanded the special master’s authority “to negotiate a revised settlement to address the Court’s concerns.” The cases, filed in 2009, involve claims that butter-substitute makers have violated consumer protection laws by promoting their products as “healthy”…
San Francisco Mayor Gavin Newsom (D) has reportedly vetoed an ordinance that would have prohibited restaurants from offering toy giveaways in children’s meals deemed too high in calories, salt or fat. Approved in an 8-to-3 vote on November 2, 2010, by the city’s Board of Supervisors, the ordinance has the minimum amount of support needed to override the veto, an action which apparently has not yet been scheduled. The ordinance was discussed in Issue 371 of this Update. Announcing the veto on November 12, Newsom called the legislation an “intrusive and ineffective approach” to combat childhood obesity. “Parents, not politicians, should decide what their children eat, especially when it comes to spending their own money,” he said in a statement. “Despite its good intentions, I cannot support this unwise and unprecedented government intrusion into parental responsibilities and private choices.” According to the California Restaurant Association, the legislation may face a…
The California Supreme Court has denied a petition for review filed by fast food restaurants seeking to overturn an intermediate appellate court ruling allowing further proceedings on claims that they violated Proposition 65 by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. S186566 (Cal., decided October 27, 2010). The intermediate appellate court determined that federal law did not preempt the claims. Additional information about its ruling appears in Issue 360 of this Update.
A California court of appeals has denied the request of a former Chipotle employee to certify a class of current and former non-managerial employees alleging that the company violated labor laws by denying them meal and rest breaks. Hernandez v. Chipotle Mexican Grill, Inc., No. B216004 (Cal. Ct. App., 2d Dist., modified opinion filed October 28, 2010). The court agreed with the defendant that California law requires that employers provide, but not ensure, that employees take breaks. The court also found no error in the trial court’s denial of class certification because the court record showed that “Chipotle did not have a universal practice with regard to breaks.” Apparently, while the company paid for meal and rest breaks, some employees declared that they always missed meal breaks, some missed meal breaks but not rest breaks, some were not denied meal breaks, and others declared their breaks were delayed or interrupted…
The San Francisco Board of Supervisors has given preliminary approval to an ordinance (No. 101096) that would prohibit restaurants from offering toy giveaways in children’s meals deemed too high in calories, salt or fat. Approved by an 8-to-3 vote on November 2, 2010, the legislation reportedly has enough votes to override Mayor Gavin Newsom’s expected veto when the bill comes before the board for a final vote. If approved, the law would take effect in December 2011. Under the ordinance, restaurants would be prohibited from offering “incentive items” such as toys, trading cards or admission tickets in meals containing more than 600 calories and 640 milligrams of sodium, and if fat makes up more than 35 percent of the calories, except for fats contained in nuts, seeds, eggs, or low-fat cheese. It would also require meals to include a certain amount of fruits and vegetables. District 8 Supervisor Bevan Dufty…
A California resident has filed a putative class action against the company that owns the Breyers ice cream brand, alleging violations of consumer protection laws because its 23 chocolate-flavored products are labeled “All Natural” but also contain cocoa processed with alkali. Denmon-Clark v. Conopco, Inc., No. 10-7898 (C.D. Cal., filed October 20, 2010). According to the complaint, “Breyers Ice Cream products containing alkalized cocoa are processed with potassium carbonate which is a recognized synthetic substance.” While acknowledging that the Food and Drug Administration (FDA) does not directly regulate the use of the term “natural,” the plaintiff alleges that the agency has a policy that defines “the outer boundaries of the use of that term” and clarifies that “a product is not natural if it contains color, artificial flavors, or synthetic substances.” The plaintiff alleges that FDA requires products made with an “alkalization” process to include the statement “Processed with alkali.” Breyers’ website…
A federal court in California has dismissed on preemption and standing grounds a number of state-law claims against The Quaker Oats Co. in a lawsuit alleging that the company falsely advertises its Chewy Bars® as containing “0 grams trans fat” when the ingredient list labeling includes hydrogenated vegetable oil. Chacanaca v. The Quaker Oats Co., No. 10-0502 (N.D. Cal., decided October 14, 2010). So ruling, the court lifted a discovery stay order and scheduled a case management conference for December 16, 2010. The defendant sought judgment on the pleadings at the outset of the action, arguing that “the doctrines of express preemption, primary jurisdiction, and Article III standing warrant immediate dismissal of the entire case.” The court agreed to dismiss all state-law deception claims involving the “0 grams trans fat” statement, the “good source” of calcium and fiber statements and a statement that the product contains whole grain oats but lacks…
