Two consumers have filed a putative class action alleging Mondelez International's Belvita breakfast foods are marketed to consumers interested in “health and wellness” but contain between 8 and 14 grams of added sugar per serving. McMorrow v. Mondelez Int’l, No. 17-2327 (S.D. Cal., filed November 16, 2017). The complaint asserts that the packaging and labeling claims are deceptively marketed to consumers as "healthy" but contribute to excess sugar consumption. Alleging violations of California’s consumer-protection laws and breach of warranties, the plaintiffs seek class certification, injunctive relief, corrective advertising, damages, restitution and attorney’s fees.
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A California federal court has dismissed a lawsuit alleging Kellogg Co. misrepresents its Mother’s® Cookies products as free of trans fats despite containing partially hydrogenated oil (PHO). Hawkins v. Kellogg Co., No. 16-147 (S.D. Cal., order entered December 13, 2016). Details about the dismissal of a similar case involving the same plaintiff appear in Issue 592 of this Update. The court held that the plaintiff had standing to sue based on the health effects of inflammation and organ damage associated with the consumption of PHO, noting that Kellogg’s response to the arguments focused on the insufficiency of speculative future risks for standing rather than the current effects. The court then turned to federal law governing the plaintiff’s claims and found that because PHO is currently permitted in food until June 2018, the plaintiff could not plausibly allege that Kellogg violated federal law. Further, her state law claims were preempted by…
A Connecticut federal court has reportedly approved the dismissal of Pepperidge Farm's lawsuit against Trader Joe's Co. alleging the grocery infringed Pepperidge Farm's trademarked Milano® cookies. Pepperidge Farm v. Trader Joe's Co., No. 15-1774 (D. Conn., order entered March 9, 2016). The lawsuit challenged Trader Joe's Crispy Cookies, which Pepperidge Farm asserted were the same shape and sold in similar packaging to Milano® cookies. The order is the first legal filing in the case since the lawsuit was filed in December 2015; an attorney for Pepperidge Farm told Law360 that the parties had reached a "mutually satisfactory resolution." Additional information about the complaint appears in Issue 586 of this Update. See Law360, March 10, 2016. Issue 598
A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015, and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, in describing several studies examining the alleged human health effects of PHO consumption. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 594
A consumer has filed a putative class action against Kellogg Co. alleging the company produces Mother’s Cookies® with partially hydrogenated oil (PHO), which contains trans fat, in violation of the U.S. Food and Drug Administration’s (FDA’s) ban on the ingredient. Hawkins v. Kellogg Co., No. 16-0147 (S.D. Cal., filed January 21, 2016). The plaintiff asserts FDA “determined that PHO is unsafe for use in food” in 2015 and alleges as a result that Kellogg is prohibited from using the food additive in its cookies. “Today there is no question about the scientific consensus on trans fat,” the complaint argues, describing several studies examining the effects of PHO on the human body. For alleged violations of California consumer-protection statutes, nuisance and breach of implied warranty, the plaintiff seeks class certification, restitution, an injunction, a corrective advertising campaign and attorney’s fees. Issue 592
Pepperidge Farm, maker of Milano® cookies, has filed a trademark infringement lawsuit against Trader Joe’s Co. alleging the retailer’s Crispy Cookies emulate the shape and configuration of Milano® cookies. Pepperidge Farm, Inc. v. Trader Joe’s Co., No. 15-1774 (D. Conn., filed December 2, 2015). In addition to the similarity between the cookie products, Pepperidge Farm alleges that the packaging of Crispy Cookies is similar as well. Although Crispy Cookies packaging depicts the cookies in a fluted paper tray—as Milano® cookies are sold—Trader Joe’s actually packages the cookies in a plastic tray inside the external packaging. Pepperidge Farm cites Google search results for “‘Trader Joe’s,’ ‘cookie’ and ‘Milano’” as evidence that consumers have also noted the similarities between the two products. Pepperidge Farm seeks declarations of infringement, permanent injunctions, damages and attorney’s fees. Issue 586
The National Advertising Division (NAD), an investigative unit of the U.S. advertising industry’s system of self-regulation, has referred to the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) an ad campaign for Danisa “Traditional Butter Cookies,” which are manufactured by the Mayora Group in Indonesia and distributed by Takari International, Inc. NAD evaluated the campaign in April 2015 after Campbell Soup Co. challenged several aspects of the product’s marketing, including the claim that the cookies are “produced and packed in Denmark” and “baked following the original recipe from Denmark,” as well as the use of Scandinavian imagery. Further, Campbell argued that FDA requires any product labeled as “Butter Cookies” to use only butter as a shortening ingredient, but multiple independent studies have shown the presence of a non-butter fat ingredient in the Danisa product. Takari International argued it could not be liable for packaging claims or discrepancies…
An Illinois federal court has granted summary judgment in favor of Kellogg North America Co. in a lawsuit disputing the patented design of resealable cookie packaging. Intercontinental Great Brands LLC v. Kellogg N. Am. Co., No. 13-0321 (N.D. Ill., order entered August 3, 2015). Intercontinental Great Brands (formerly Kraft Foods Global Brands) sued Kellogg and its affiliates alleging patent infringement, and Kellogg argued that the patent was invalid. Kellogg’s resealable container, which “was designed to ‘circumvent the Kraft patent while maintaining similar properties,’” allows consumers to open a package of cookies then reattach the plastic flap to maintain freshness. Kellogg argued that the patent was invalid because the asserted claims in the patent are obvious, and the court agreed. The standard of obviousness includes considerations of four factors: (i) the scope of prior art, (ii) differences between the prior art and the claim at issue, (iii) the level of ordinary…
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
Finding a lack of standing, a California federal court has dismissed the named plaintiffs of a putative class action against Safeway alleging that the company should have notified customers who purchased dangerous products through information gathered from its loyalty-card program. Hensley-Maclean v. Safeway, Inc., No. 11-1230 (N.D. Cal., order entered June 29, 2015). Details about the court’s refusal to dismiss the case before discovery appear in Issue 398 of this Update. After proceeding through discovery, Safeway apparently learned that none of the plaintiffs had purchased any products subject to Class I recalls, which occur “when there is a reasonable probability that use of the product will cause serious, adverse health consequences or death.” The two named plaintiffs had argued that Safeway should have notified them about recalls of Nutter Butter® Sandwich Cookies and Lucerne® eggs, but later examination revealed that their purchases were not part of any Class I recalls.…
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