A federal court in Illinois has dismissed without prejudice a putative class action alleging consumer fraud against a company that makes snacks which list evaporated cane juice (ECJ) as an ingredient. Ibarrola v. Kind, LLC, No. 13-50377 (N.D. Ill., order entered July 14, 2014). The court declined to address whether the plaintiff had standing to assert claims as to products she had not purchased because class issues such as adequacy and typicality had not yet been briefed and further declined to consider dismissing the complaint under the primary jurisdiction doctrine, noting that the U.S. Supreme Court may have called this rationale into question in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, 2014 WL 2608859 (June 12, 2014). The court dismissed the entire complaint, however, because it failed “to plausibly and adequately alleged that [the plaintiff] was deceived by Kind’s representations.” She did not apparently “explain how she was deceived, or…
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A California federal court has granted motions to amend the judgment in two cases previously dismissed to accord primary jurisdiction to the U.S. Food and Drug Administration (FDA), each alleging that the defendants mislabeled their food products as including “evaporated cane juice” (ECJ) rather than the more common term, sugar. Swearingen v. Santa Cruz Natural Inc., No. 13–4291 (U.S. Dist. Ct., N.D. Cal., order entered July 1, 2014); Figy v. Amy’s Kitchen Inc., No. 13–3816 (U.S. Dist. Ct., N.D. Cal., order entered July 7, 2014). The court cited “the unique circumstances,” “the potential prejudice to plaintiff,” and “the apparent lack of prejudice to the defendant” in amending its previous decisions to dismiss the cases without prejudice rather than stay them. The plaintiffs had argued that allowing the dismissal to remain rather than issuing a stay through the end of 2014 would likely result in the loss of a year of…
A pair of plaintiffs has filed putative class actions against Chobani LLC and Fage Dairy Processing SA in New York federal court claiming that the yogurt producers deceptively marketed yogurt as healthy despite its high sugar content. Stoltz v. Chobani LLC, No. 1:14-cv-3827 (E.D.N.Y., filed June 19, 2014); Stoltz v. Fage Dairy Processing SA, No. 1:14-cv-3826 (E.D.N.Y., filed June 19, 2014). The nearly identical suits allege that Chobani and Fage used a label intended “to create consumer confusion by causing purchasers to impute any meaning to the 0 percent that consumers wish, such as that the products lack sugar, carbohydrates, calories or any other content which a consumer may believe is unhealthy,” according to the complaint against Fage. The complaints include pictures of the defendants’ products and pictures of competitors’ products to illustrate the industry standard of including what nutrition levels the “0 percent” refers to, such as fat or…
A California federal court has certified a class of California consumers who allege that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Werdebaugh v. Blue Diamond Growers, No. 5:12-cv-2724 (N.D. Cal., order entered May 23, 2014). The court granted plaintiff Chris Werdebaugh’s motion for certification of the California class but rejected his request for nationwide certification because he had not shown that California had any interest that outweighed the interests of other states in determining their own policies. Werdebaugh argued that the “All Natural” label on Blue Diamond’s almond milk is misleading because the product contains chemical preservatives, synthetic chemicals and added artificial color, and the label also lists ECJ as an ingredient when sugar is the common name as required by the U.S. Food and Drug Administration (FDA). The court ruled…
In a putative class action alleging that a food company misled its customers by using the term “evaporated cane juice” (ECJ) instead of “sugar” on its labels, a California federal court has followed the lead of several other courts in recent decisions by dismissing the case without prejudice under the primary jurisdiction doctrine—this time, reversing its previous decision to allow the case to move forward. Swearingen v. Yucatan Foods LP, No. 13-3544 (N.D. Cal., order entered May 20, 2014). Guacamole producer Yucatan Foods had argued that the U.S. Food and Drug Administration (FDA) had primary jurisdiction over the matter, but Judge Richard Seeborg initially disagreed, finding that FDA had taken no action on ECJ since 2009 and thus that the agency considered the matter settled. On March 5, 2014, one month after the Yucatan decision was filed, FDA announced that it would reevaluate its previous draft ECJ guidance. Following the…
A federal court in California has granted beverage manufacturer Santa Cruz’s motion to dismiss a putative class action alleging that the “evaporated cane juice” (ECJ) listed on its beverage labels is merely sugar, thus violating the Food and Drug Administration’s (FDA’s) required use of an ingredient’s “common or usual name.” Swearingen et al. v. Santa Cruz Natural Inc., No. 13-4291 (N.D. Cal., order entered April 2, 2014). Finding that FDA had primary jurisdiction over the matter, the court cited a March 5, 2014, notice that the agency has reopened the comment period on its draft industry guidance pertaining to the use of the term ECJ on food labels. Details about FDA’s action appear in Issue 516 of this Update. According to the court, this notice clearly indicates that FDA is currently engaged in “active rulemaking on the issue” and intends to resolve the matter. Citing FDA’s superior resources to determine…
A federal court in California has dismissed the claims of one named plaintiff in a putative class action alleging that certain Costco Kirkland branded products are misbranded and deceptive, and narrowed the claims of the other named plaintiff. Thomas v. Costco Wholesale Corp., No. 1202908 (N.D. Cal., order entered March 31, 2014). The plaintiff whose claims were dismissed for lack of standing had alleged that the “0 grams trans fat” labeling on Kirkland Signature Kettle Chips was untruthful or misleading. The court agreed with the defendant that she had not cured the standing defects in her second amended complaint (SAC) and thus dismissed her claims with prejudice. Among other matters, she failed to (i) allege that the chips she purchased included any amount of trans fat or that she received a product different from the one as labeled, (ii) demonstrate that the label violated 21 C.F.R. § 101.13(h)(1), or (iii)…
A federal court in California has granted in part and denied in part the motion to dismiss filed in a putative class action against Whole Foods Market. Pratt v. Whole Foods Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., order entered March 31, 2014). The claims relate to a number of 365 Everyday Value® products that the plaintiff purchased and involve the following allegedly unlawful or misleading label representations: “evaporated cane juice” (ECJ), “natural” and “no sugar added.” Because the plaintiff abandoned in his amended complaint all claims regarding the defendants’ whipped topping product, the court dismissed all claims based on this product with prejudice as to the plaintiff and without prejudice as to any putative class member. The “no sugar added” claims were thus dismissed, “as the only product alleged to have such a misleading claim was the whipped topping.” The court also emphasized that, per its August 2013 order, any claims…
The defendant in litigation alleging that it conceals the sugar added to its tea-like yerba mate products by listing the ingredient as “organic evaporated cane juice” has removed the action to federal court. Cowan v. Guayaki Sustainable Rainforest Prods., Inc., No. 14-1248 (N.D. Cal., removed March 17, 2014). The plaintiff, a California resident with a family history of diabetes, alleges that she purchased the products relying on the ingredients listed on the product labels and paid more for them “because she believed the Class Products contained lesser amounts of sugar and was [sic] healthier for her” than comparable products. Seeking to represent a nationwide class of consumers, the plaintiff claims that Guayaki releases misbranded products into the stream of commerce and that the company violates the Unfair Business Practices Act, California False Advertising Act and Consumers Legal Remedies Act. She also brings causes of action for negligent misrepresentation and breach of…
While a federal court in California has dismissed a request for injunctive relief in a consumer fraud action against Wallaby Yogurt Co. for lack of standing, it will allow the first amended complaint’s remaining claims to proceed. Morgan v. Wallaby Yogurt Co., Inc., No. 13-0296 (N.D. Cal., order entered March 13, 2014). Additional details about the court’s ruling on the plaintiff’s original complaint appear in Issue 500 of this Update. As to the request for prospective injunctive relief, the court agreed with the defendant that the plaintiffs will not be deceived as to future product purchases because they now know that “evaporated cane juice” is added sugar. So ruling, the court acknowledged a split among the district courts in the circuit on this issue. The court also expressly disagreed with Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal. Sept. 19, 2013), to the extent that the court (i) found that…
