A consumer has filed a putative class action against Mondelez International Inc., maker of Sour Patch Kids, alleging the company sells 28 pieces of candy in a non-transparent cardboard package capable of holding 50 pieces. Izquierdo v. Mondelez Int’l Inc., No. 16-4697 (S.D.N.Y., filed June 20, 2016). The complaint asserts that Mondelez intentionally sells Sour Patch Watermelon in oversized packages in violation of state and federal law. For allegations of misrepresentation, fraud and unjust enrichment as well as violations of New York consumer-protection statutes, the plaintiff seeks class certification, damages, restitution, an injunction requiring more accurate packaging and attorney’s fees. Issue 609
Tag Archives candy
The Council of Better Business Bureaus (CBBB) and the National Confectioners Association have announced the Children’s Confection Advertising Initiative (CCAI), “a new self-regulatory initiative that promotes responsible advertising to children.” Modeled after the Children’s Food and Beverage Advertising Initiative (CFBAI), which includes six major confectioners, CCAI asks participating companies not to advertise to children younger than age 12 or in schools from pre-kindergarten through sixth grade. Six candy companies have already pledged to abide by CCAI advertising rules. As Federal Trade Commission (FTC) Chair Edith Ramirez remarked, “This new initiative is a welcome addition to the CBBB’s existing Children’s Food and Beverage Advertising Initiative and represents the type of self-regulatory solution the FTC has long advocated. The commitment by six confectionery companies to refrain from advertising in elementary schools and in media targeted at children is a positive step. I also hope that this new partnership with the National Confectioners…
Two consumers have reportedly filed a putative class action against Welch Foods, Inc. and Promotion in Motion Cos. alleging their Welch’s fruit snacks products are deceptively advertised as providing vitamins and nutrients despite being “no more healthful than candy.” Atik v. Welch Foods, Inc., No. 15-5405 (E.D.N.Y., filed September 18, 2015). Welch’s packaging advertises its products as produced from “real fruit” despite using only fruit concentrate, the complaint reportedly alleges, and the packaging implies the vitamins in the fruit snacks are derived from the fruit rather than introduced during the production process. This infusion allegedly runs afoul of the U.S. Food and Drug Administration’s “jelly bean rule,” which targets products that would not otherwise meet the agency’s standards for healthful foods without the addition of vitamins during the production process. See FoodNavigator-USA, September 23, 2015. Issue 580
Germany’s highest court has ruled that Swiss chocolatier Lindt & Sprüngli did not violate German confectioner Haribo’s trademark “Gold Bear” when it began selling a chocolate bear wrapped in gold foil in 2011. Haribo has produced Gold-Bear® gummy bears for several decades, which are sold in gold packages featuring a yellow bear wearing a red ribbon and bow tied around its neck. Lindt’s gold-clad chocolate bear also wears a red ribbon tied in a bow around its neck, styled after the company’s chocolate Easter bunny products. Haribo claimed in 2012 that consumers were likely to be confused by Lindt’s packaging; a trial court agreed, but an intermediate appellate court overturned the ruling. The Federal Court of Justice has affirmed the appellate ruling, reportedly saying in a German-language statement that it wants to avoid the danger of “product design monopolisation.” Information about Haribo’s 2012 complaint appears in Issue 462 of this…
The University of Connecticut Rudd Center for Food Policy & Obesity has issued a report claiming that food companies “disproportionately target their TV advertising for fast food, candy, sugary drink and snack brands to black and Hispanic consumers.” Focusing on restaurant, food and beverage companies that spent at least $100 million on advertising in 2013 as well as participants in the Children’s Food and Beverage Advertising Initiative, the report reviews the number of advertisements for fast food, sugar-sweetened beverages, snack foods, dairy products, 100-percent juice, water, fruits and vegetables that appeared on “Spanish-language TV and black-targeted TV programming.” The authors also used syndicated market research data from Nielsen to compile media spending by brand and product, in addition to estimating “exposure to TV advertising by black, Hispanic, and all children and adolescents in 2013.” In particular, the report notes that 26 companies spent $675 million in food-related advertising on Spanish-language…
A California federal court has granted Hershey’s motion for summary judgment in a lawsuit originally alleging that the company mislabels its Kisses®, cocoa products and Ice Breakers® mints with respect to healthy diet claims, sugar-free claims, serving sizes, and the content of antioxidants, nutrients, vanillin, and polyglycerol polyricinoleic acid. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered March 31, 2015). The claims were previously cut to a single unfair competition claim over the use of the statement “natural source of flavanol antioxidants” on dark chocolate and cocoa products. Additional information about these rulings appears in Issues 463 and 523 of this Update. The plaintiff argued that Hershey’s claim implied that flavanol antioxidants conferred health benefits, despite evidence showing no such benefit. He failed to prove that the statement in question would be likely to mislead reasonable consumers, the court said. The plaintiff “testified in his deposition that Hershey’s products…
Ten consumer organizations, including the Center for Science in the Public Interest and the Rudd Center for Food Policy and Obesity, have filed a Request for Investigation with the Federal Trade Commission (FTC) alleging that Topps Co., maker of Ring Pops, violated the Children’s Online Privacy Protection Act (COPPA) by encouraging children younger than age 13 to post photos of themselves wearing the candy to social media. Topps apparently introduced the campaign, #RockThatRock, as a collaboration with “tween band” R5 to feature photos of Ring Pop wearers in the band’s music video. Consumers could enter the contest by posting a photo to social media and appending the name of the campaign. The consumer groups allege that Topps aimed the contest at youth through its child-focused website, Candymania, and that the contest violated COPPA rules by collecting personal information—which, by statutory definition, includes photographs—from a child without giving notice and obtaining…
A California federal court has rejected in part and granted in part Total Sweeteners Inc.’s motion for summary judgment in a case alleging that the molasses supplier sold American Licorice Co. shipments tainted with lead that American Licorice then used to create Red Vines black licorice candy, resulting in a costly recall. Am. Licorice Co. v. Total Sweeteners Inc., No. 13-1929 (N.D. Cal., order entered October 22, 2014). Additional details about the case appear in Issue 494 of this Update. American Licorice argued that, under the sales contract, Total Sweeteners was obliged to provide molasses that complied with state and federal regulations; Total Sweeteners asserted that American Licorice knew that molasses has some naturally occurring lead and should have tested for it upon receipt. The court focused on the contract, agreeing with Total Sweeteners that the sales contract between the parties, and not a subsequent purchase order with terms favorable…
A German appeals court has dismissed a lawsuit brought by consumer group Stiftung Warentest accusing candy manufacturer Ritter Sport of labeling its Whole Hazelnut bar as natural despite containing piperonal, which the group contends can only be obtained using unnatural chemicals. The ruling prevents Stiftung Warentest from claiming Ritter is misleading customers but does not yet allow claims for damages. A representative of Stiftung Warentest expressed disappointment with the decision, saying that they still did not know how Ritter produced the piperonal, but a Ritter representative said that the company, along with its piperonal supplier Symrise, had filed patents on how the substance could be obtained naturally. See Confectionery News, September 15, 2014. Issue 539
A federal multidistrict litigation (MDL) court in Pennsylvania has determined that individual-purchaser plaintiffs and a direct-purchaser class failed to discover evidence that U.S. chocolate companies conspired to increase prices for immediate-consumption products between 2002 and 2007, and, with “nothing more than speculation as to the who, what, when, where, and how of communications that allegedly facilitated the parallel price increases,” the court was compelled to grant the defendants’ motions for summary judgment on the plaintiffs’ Section 1 antitrust claims under the Sherman Act. See In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., decided February 26, 2014). The litigation involves some 91 lawsuits transferred to the MDL court for pre-trial proceedings. Defendants Nestlé U.S.A., Inc., The Hershey Co., and Mars, Inc. and Mars Snackfood U.S. LLC control about 75 percent of the U.S. chocolate-products market, and during the relevant time period, which saw prices for cocoa increase 53…
