A federal court in California has dismissed with prejudice the second amended complaint in a putative class action alleging that Wrigley Sales Co.’s chewing gum and candy products are misbranded because the labels state that they are “sugar free.” Gustavson v. Wrigley Sales Co., No. 12-1861 (N.D. Cal., decided January 7, 2014). The court determined that the product labels do not violate federal regulations, the plaintiff failed to adequately plead her alleged regulatory violations, and the plaintiff “is attempting to impose a labeling requirement that is ‘not identical to’ federal requirements.” Thus the court ruled that the “sugar free” component of the complaint was preempted and any further amendment of the complaint would be futile. The court dismissed the remainder the complaint relating to the defendant’s alleged failure to disclose that the products “are sweetened with nutritive and non-nutritive sweeteners or to detail the percentage of the product that nonnutritive…
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Lindt & Spruengli AG is once again facing trademark litigation over its gold-wrapped chocolate candy, this time for its “Teddy,” which Haribo GmbH claims infringes its “Gold-Bears” multi-colored gummy bears product. Lindt was unable to secure a European Union (EU) trademark for its chocolate bunny, but was able to stop Hauswirth in Austria from manufacturing Easter bunnies resembling its bunny. Lindt did not succeed in similar litigation against Reigelein in Germany. Additional information about the EU Court of Justice ruling rejecting the bunny registration appears in Issue 441 of this Update. Lindt and Haribo apparently agreed to ask a German court to resolve their dispute, and an initial hearing occurred in Landgericht Köln in October 2012. The final hearing is scheduled for December 18. Lindt has reportedly indicated that it specifically avoided marketing its bear shaped candy as a “Gold Teddy,” but Haribo complains that the product nevertheless infringes its…
The U.S. Food and Drug Administration (FDA) has issued a statement cautioning people older than age 40 about eating too much black licorice—2 ounces per day for two weeks. FDA experts explain that black licorice contains glycyrrhizin, a sweetening compound that can cause the body’s potassium levels to plummet, leading to an irregular heart rhythm, high blood pressure, edema, lethargy, and possibly heart failure, said FDA. The agency also warned that black licorice can interact negatively with some medications and supplements. According to FDA Director of Cosmetics and Colors Linda Katz, potassium levels are usually restored with no permanent health problems when black licorice consumption stops.
A federal court in California has denied a motion to dismiss in a contract dispute between the supplier of molasses allegedly contaminated with lead and the company that used the ingredient to make licorice subject to a nationwide recall. Am. Licorice Co. v. Total Sweeteners, Inc., No. 13-1929 (N.D. Cal., order entered August 13, 2013). Relying on a sales contract it had prepared, the molasses supplier contended that the plaintiff had failed to comply with its notice provisions and therefore was precluded from seeking relief for its alleged breach. Relying on a purchase order with different terms it had prepared and issued before the first shipment under the contract, the plaintiff candy maker argued that the shipments were subject to its terms. The court was unwilling to determine as a matter of law whether the purchase order altered the terms and conditions of the contract, finding that “this issue is…
The Food and Drug Administration (FDA) has issued a final rule providing “for the safe use of spirulina extract made from the dried biomass of the cyanobacteria Arthrospira platensis (A. platensis), as a color additive in candy and chewing gum.” According to FDA, “Spirulina is a blue-green filamentous cyanobacteria that occurs naturally in freshwater and marine habits.” Its extract primarily contains “the water soluble components of spirulina, namely phycocyanins and other proteins, polysaccharides, lipids, and minor amounts of components such as vitamins, minerals, and moisture.” FDA has also determined that “there is no need for a specific upper limit for the color additive or phycocyanin content,” although the extract must abide by limits for lead, arsenic and mercury, in addition to testing negative for the microcystin toxin, “which is produced by some species of cyanobacteria that could be potentially present in the water where A. platensis is grown and harvested.”…
California’s attorney general (AG) has filed a suit against a number of candy manufacturers and grocery retailers, alleging that they have violated Proposition 65 (Prop. 65) by failing to label “ginger candies and other food products containing ginger” and/or “plum candies and other products containing plums,” which the AG claims contain lead, a substance known to the state “to cause cancer, birth defects, and other reproductive harm.” People v. Dakota Bros., No. __ (Cal. Super. Ct., San Francisco Cty., filed April 30, 2013). Under Prop. 65, “businesses must provide a ‘clear and reasonable warning’ before exposing individuals to lead,” according to the complaint, and the defendants have allegedly not provided such warnings. The AG seeks civil penalties, not to exceed $2,500 per day for each violation, injunctive relief, attorney’s fees, and costs.
A recent study targets the alleged health effects of two food and beverage dyes—Brilliant Blue (E133) and Patent Blue (E131)—after systemic absorption. Marianna Lucová, et al., “Absorption of triphenylmethane dyes Brilliant Blue and Patent Blue through intact skin, shaven skin and lingual mucosa from daily life products,” Food and Chemical Toxicology, February 2013. A particular focus of the study was to “assess the potential for lingua mucosa absorption of the dyes from human saliva as a consequence of licking lollipops.” The findings were “troubling,” the study noted, “particularly with regard to the repeated licking of lollipops by children.” The study concludes that because both dyes can potentially enter the bloodstream through the dorsum of the tongue and cause adverse health effects, such as attention deficit hyperactivity disorder, allergies and asthma, neither dye should be used in the manufacturing of lollipops and hard candies. Brilliant Blue is used as food additive…
According to a news source, the United Kingdom’s Community Trade Mark Office has determined that the shape of a KitKat® bar, which Nestlé registered as a community trademark in 2006, is valid, thus barring any other confectioners from selling products with a similar shape in the European Union. Nestlé competitor Cadbury makes a similar product and sought to invalidate the mark shortly after it was registered, claiming that the trait was too general to be protected. Cadbury is reportedly considering whether to appeal the ruling. See Huffington Post, January 3, 2013.
A multidistrict litigation (MDL) court that is considering pretrial matters in 91 consolidated antitrust lawsuits alleging that major chocolate manufacturers conspired to implement price increases from 2002 through 2007, has granted the direct-purchaser plaintiffs’ motion for class certification. In re Chocolate Confectionery Antitrust Litig., MDL No. 1935 (M.D. Pa., order entered December 7, 2012). The court did so after first determining whether the plaintiffs’ expert testimony in support of class certification is reliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The U.S. Supreme Court is currently facing a similar issue, that is, “Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.” The MDL court, noting that the issue has not yet been decided in…
A federal court in California recently granted in part and denied in part the Hershey Co.’s motion to dismiss putative class claims alleging that the chocolate maker violates consumer fraud laws by making unlawful nutrient content, “healthy” and antioxidant claims on product labels; failing to comply with chocolate product standards of identity or to use common names for ingredients; making unlawful sugar-free claims; and using improper serving sizes. Khasin v. The Hershey Co., No. 12-01862 (N.D. Cal., order entered November 9, 2012). Because the plaintiff’s claims were based on parallel state laws that “mirror” relevant sections of the Food, Drug, and Cosmetic Act (FDCA) and the Nutrition Labeling and Education Act, the court determined that they were not preempted. In this regard, the court noted, “complying with the demand requested by Plaintiff in this cause of action would not require that Defendant undertake food labeling or representation different from the…
