Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.” Information about a similar case filed in…
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Having considered the matter for some six years, the General Court of the European Union (EU) has determined that chocolate makers Lindt & Sprüngli AG and August Storck AG cannot register certain three-dimensional shapes, their colored wrappings and ribbons as European Community trademarks. According to the court, chocolate rabbits, reindeer, bells, and mice “cannot be considered to be capable of identifying the commercial origin of the goods they designate.” The court opined that the Lindt & Sprüngli application involved shapes typical of those “presented at certain times of the year, in particular at Easter and Christmas.” The August Storck application was “made up of a combination of standard presentation elements, typical of the goods concerned,” said the court. See General Court of the European Union Press Release No. 124/10, December 17, 2010.
Hershey Company has reportedly sued Mars for trademark infringement in a Pennsylvania federal court, alleging that colors used in the packaging for Mars’s Dove peanut-butter milk-chocolate Promises® candy is too similar to what Hershey uses for its Reese’s Peanut Butter Cups®. Mars apparently filed a preemptive suit just days earlier in a Virginia federal court, asking to dismiss the Hershey complaint. Mars reportedly contends that Hershey admits it does not have exclusive rights to package peanut-butter candies in orange wrappers and that orange is commonly used in the industry as an indicator of peanut-butter flavor. According to a news source, Hershey sent a cease-and desist letter to Mars in November 2010, stating, “It can come as no surprise to Mars that Hershey, having objected to the color of the individual Dove peanut butter chocolate wrappers and filed a counterclaim to obtain a change of that color, would have a serious problem…
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…
“Sorry to scare you, but on Halloween much of the chocolate Americans will hand out to trick-or-treaters will be tainted by the labor of enslaved children,” writes Andrew Korfhage in this October 18, 2010, AlterNet article alleging that chocolate manufacturers have failed to eradicate child labor practices as promised. According to the author, Hershey’s and other companies pledged “nearly a decade ago to set up a system to certify that no producers in their supply chains use child labor,” but have yet to take any “meaningful action.” Korfhage credits a 2001 exposé with documenting the “scandalous conditions under which most U.S. chocolate is made,” noting that the effort spurred Representative Eliot Engel (D-N.Y.) and Senator Tom Harkin (D-Iowa) to introduce legislation seeking “slave-free” certification for all U.S. chocolate. “[B]ut before Harkin’s bill could pass the Senate, the chocolate industry had announced a voluntary four-year plan to clean up its own…
The Florida Board of Education is reportedly considering a ban on chocolate milk and sugary beverages in the state’s public schools. Board members evidently tabled the issue last spring in anticipation of federal government action, but recently decided to move forward to hear opinions from physicians and researchers on whether such a ban would improve children’s health. Hearings will be held over the next two months, with possible legislation coming in December. “When you think about it, we probably have a million overweight or obese children in our schools,” board member John Padget was quoted as saying. “I think the clock is ticking in terms of personal health.” Board member Susan Story reportedly wants the board to consider a possible ban on other foods sold in schools, including chips and ice cream. “To me, it’s a bigger issue that needs to be looked at and not a chocolate milk-versus-white milk…
The attorneys for a woman who recently reportedly sued General Mills for failing to properly disclose that its fruit snack products contain partially hydrogenated oil also represent a man who has filed similar claims against the companies that make and sell Yoo-Hoo®, a chocolate beverage. Dahl v. Mott’s LLP, No. __ (E.D.N.Y., filed June 29, 2010). Information about the General Mills lawsuit appears elsewhere in this Update. According to plaintiff Timothy Dahl, the defendants promote Yoo-Hoo® as a nutritious and healthy product, claiming that it contains vitamins and minerals, has no preservatives and is 99 percent fat free and 99 percent caffeine free. The complaint states, “Unfortunately for consumers and, in certain cases their children, all these claims are false and misleading. Defendants’ healthful claims are misleading since the Product fails to properly disclose they contain a highly unhealthy, non-nutritious ingredient known as partially hydrogenated oil. This partially hydrogenated oil…
Pennsylvania-based chocolate maker Hershey Co. has filed a Lanham Act lawsuit against Williams-Sonoma Inc., alleging that the kitchen product retailer is marketing and selling a baking pan that infringes Hershey’s “Chocolate Bar Design Mark,” a purportedly distinctive rectangle scored into 12 smaller rectangles. The Hershey Co. v. Williams-Sonoma, Inc., No. 10-1011 (M.D. Pa., filed May 12, 2010). According to the complaint, Hershey has been selling its chocolate bar for more than 100 years and registered its design in 1968. Hershey alleges that defendant’s unauthorized use of the design mark will cause confusion and that potential purchasers and consumers are likely to believe the infringing brownie pan is licensed by or affiliated with Hershey or its products. As an example of that confusion, the complaint quotes alleged online consumer comments about the baking pans: “you can make your own little hershey’s miniatures”; “It’s like a Hershey’s bar with individual brownies”; and “Whether you’re…
Supervalu, Inc. has filed an antitrust action against a number of chocolate manufacturers, alleging that they conspired to fix chocolate candy prices and overcharged the plaintiff for these products from 2002 through 2008. Supervalu, Inc. v. The Hershey Co., No. 10-1354 (E.D. Pa., filed March 29, 2010). The complaint outlines the chocolate companies’ sales during the relevant time period and details the increases in prices charged for specific products despite a decrease or lack of change in the price for cocoa beans during the same period. The plaintiff also claims that the prices of sugar, milk and labor remained relatively stable throughout the period. Included in the complaint are allegations contained in affidavits filed in connection with an investigation into the companies’ conduct by the Canadian Competition Bureau. Seeking treble damages, declaratory and injunctive relief and attorney’s fees and costs, the plaintiff alleges a single count of conspiracy to fix prices under…
A federal court in Pennsylvania has certified for immediate appeal its denial of the defendants’ motion to dismiss in multidistrict litigation (MDL) alleging price-fixing by chocolate manufacturers. In re Chocolate Confectionary Antitrust Litig., MDL No. 1935 (M.D. Pa., April 8, 2009). The defendants in these 87 consolidated lawsuits reportedly supply 75 percent of the chocolate candy consumed by Americans each year. The lawsuits allege that the companies conspired to raise prices in 2002, 2004 and 2007 by as much as 10 percent and rely on information generated by government investigations in the United States and Canada to bolster their conspiracy allegations. At least one company spokesperson has been quoted as saying, “You can’t just infer the existence of a price-fixing conspiracy from the fact that independent competitors in concentrated industries independently choose to raise their prices.” The question certified to the Third Circuit Court of Appeals is whether the U.S.…
