A California federal court has preliminarily approved a settlement in a case alleging that Ghirardelli failed to include white chocolate, cocoa or cocoa butter in its white chocolate chips. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (U.S. Dist. Ct., N.D. Cal., San Francisco Div., order entered October 2, 2014). Additional details about the settlement appear in Issue 535 of this Update, and further information about the litigation appears in Issues 465 and 479 of this Update. Under the agreement, Ghirardelli will pay $5.25 million to a common fund to distribute to class members. Notices to potential class members will appear in People magazine and the Oakland Tribune and on several popular websites, and any leftover balance in the settlement fund will be divided among several consumer and food organizations, including Consumers Union and Florida State University’s Food & Nutrition Science Department. A fairness hearing is scheduled for February 2015. …
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The Third Circuit Court of Appeals has found that a lower court did not abuse its discretion in approving a $3 million settlement offer in a nationwide class action alleging that Ferrero USA falsely advertised Nutella hazelnut spread as nutritious for children. In re Nutella Mktg. & Sales Practices Litig., No. 12-3456 (3rd Cir., order entered September 29, 2014). Several class members had objected to the size of the attorney’s fees award and the deduction of the award from the settlement fund. More details about the settlement appear in Issue 444 and Issue 530 of this Update. Issue 539
Hershey Co. has filed a complaint in Pennsylvania federal court alleging that LLB Imports infringes its trademarks and trade dress for several of its products, including Reese’s, York, Cadbury, Malteser, Kit Kat, and Rolo. Hershey Co. v. LLB Imports LLC, No. 14-1655 (M.D. Penn., filed August 25, 2014). According to the complaint, LLB Imports has been selling Toffee Crisp, Yorkie, Maltesers, Cadbury, Kit Kat, and Rolo products manufactured outside of the United States bearing nutritional information panels required by other countries, and the sale of the products allegedly infringes trademarks and trade dress owned by or exclusively licensed to Hershey. In addition to several trademark infringement claims, the candy company alleges that Toffee Crisp infringes the trade dress for Reese’s, citing its shade of orange and outlined yellow script, as well as the trade dress of Cadbury, Kit Kat and Rolo. Hershey asks for an injunction, a declaration that LLB violated the…
The parties to litigation alleging that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such have agreed to settle the putative nationwide class action for $5.25 million and labeling changes. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., motion filed August 20, 2014). Additional information about the case appears in Issues 465 and 479 of this Update. The settlement would also resolve claims to be alleged in a second lawsuit by an intervening named plaintiff regarding the use of “all natural” on product labels. Under the agreement, class members who purchased the company’s Classic White Chips would be able to receive $1.50 per purchase, while those purchasing 72 other “all natural” products would receive $0.75 per purchase. The claims of those with proofs of purchase would not be capped, while claimants without proof of purchase would receive a maximum…
According to a putative class action removed to Arkansas federal court, Whole Foods mislabels several of its 365 Everyday Value brand products as “organic” or “all natural” despite containing synthetic ingredients. Stafford v. Whole Foods Market Cal., No. 14-420 (E.D. Ark., removed July 22, 2014). Originally filed in Arkansas state court in June, the complaint accuses several products of mislabeling—for example, the plaintiff says, the 365 Everyday Value soft drink contains carbon dioxide, citric acid, tartaric acid, and caramel coloring despite its “all natural” label. Whole Foods argued to the state court that the potential class contains more than 100 people who seek over $5 million in damages, so the case was removed to federal court. Alleging that Whole Foods violated Arkansas labeling laws and breached warranties, the plaintiff seeks class certification, damages and interest. A similar case filed in New Jersey state court alleges that Breyers, a subsidiary of Unilever…
The Ninth Circuit Court of Appeals has upheld the settlement of class actions alleging consumer fraud in ads portraying Nutella as a healthy breakfast food. In re Ferrero Litigation, No. 12-56469 (9th Cir., decided July 16, 2014) (unpublished). Three members of the certified statewide class objected to the settlement, which provided $550,000 to reimburse class members, required ad-campaign and product-labeling revisions and awarded $985,920 in attorney’s fees. The objectors claimed inadequate notice of the attorney’s fee request, lack of justification or explanation for the fee award and the district court’s failure to consider whether class counsel adequately represented the class. The court found no basis for the objections, noting in part that the district court properly applied the lodestar method to the attorney’s fee calculation and that no indicia of collusion were present. Issue 530
A federal court in California has dismissed all but one claim in a putative consumer-fraud class action against The Hershey Co., finding that, based on his deposition, the plaintiff relied only on the label claims for antioxidants in making his purchasing decisions. Khasin v. The Hershey Co., No. 12-1862 (N.D. Cal., order entered May 5, 2014). Information about a prior court ruling that dismissed other claims appears in Issue 463 of this Update. The court granted the company’s motion for summary judgment as to claims made on its website or in off-label advertising and as to “any claims based on alleged misrepresentations or omissions regarding vanillin, PGPR, serving size and alkalized cocoa powder.” The court also granted summary judgment as to claims alleging a failure to make disclaimers on the company’s mint products, i.e., that they should not be substituted as an entrée, lunch or meal and that they are not…
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…
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 Codex Alimentarius has announced new food safety and nutrition standards that strive to “protect the health of consumers worldwide.” The regulations include guidance on preventing and reducing ochratoxin A—a reportedly carcinogenic contaminant—in cocoa, avoiding microbiological contamination of berries, preventing hydrocyanic acid in cassava, and when to label food with ”non-addition of sodium salts.” The commission also seeks to protect consumers against fraud and ensure fair food trade practices for products such as avocados, chanterelles, pomegranates, olives, and fish products. “The standards help buyers and sellers establish contracts based on Codex specifications and make sure that the consumers get from the products what they expect,” explained a news release. The recommendations also include nutrient references for sodium and saturated fat, as well as maximum pesticide residue limits for certain food additives. Meanwhile, Codex celebrated its 50th anniversary at its annual meeting, held in Rome, July 2, 2013. The session was attended by 620…
