A federal court in Florida has dismissed without prejudice a putative class action alleging that the Wm. Wrigley Jr. Co. misled consumers by claiming that its Eclipse® Breeze chewing gum contains “Cardamom to Neutralize the Toughest Breath Odors.” Nichols v. Wm. Wrigley Jr. Co., No. 10-80759 (S.D. Fla., decided January 19, 2011). A similar lawsuit, filed in August 2010 in California, is discussed in Issue 360 of this Update. According to the court, the plaintiff pleaded sufficient facts “to establish the falsity of the representation,” but he did not plead sufficient facts as to each of his claims of fraudulent concealment, negligent misrepresentation, intentional misrepresentation, and breach of express warranty. The court dismissed the plaintiff’s claim for unjust enrichment because “he does not lack an adequate legal remedy.” The plaintiff was given five days to file an amended complaint.
Tag Archives Florida
According to a press report, an amended putative class complaint has been filed in a Florida federal court against two companies that make and sell apple juice for children’s consumption, alleging that by failing to warn about the presence of lead in the juice the companies have violated state deceptive and unfair trade practices law. Poulis v. Gerber Prods. Co., No. 10-81475 (S.D. Fla., amended complaint filed January 11, 2011). The complaint was originally filed in state court soon after a California nonprofit organization notified the companies in June 2010 that their products contained lead in excess of levels established as safe under that state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). It was removed to federal court in November. The plaintiffs have not apparently alleged personal injury from the exposure, but claim they would not have purchased the companies’ products if they had known about…
The Physicians Committee for Responsible Medicine (PCRM) has filed a lawsuit seeking a response to its petition calling for the withdrawal of the federal government’s “current MyPyramid food diagram and dietary guidelines” and the adoption of PCRM’s “Power Plate food diagram and dietary guidelines.” PCRM v. Vilsack, No. 11-00038 (D.D.C., filed January 5, 2011). Brought against the secretaries of the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS), the complaint for injunctive relief calls the agencies’ food diagram “ineffective and confusing” and alleges that it “fails to promote overall health and well-being.” PCRM contends that USDA and HHS have violated the Administrative Procedure Act by failing to respond to its petition in a “reasonable time.” PCRM’s “Power Plate” would eliminate all animal-derived products from the diet. A Florida resident has filed a putative class action against Phusion Projects, LLC, claiming that the company’s Four Loko® caffeinated alcoholic…
A Florida resident has filed a putative class action against Tropicana Products,Inc. and a retailer, alleging that promotions for Trop50 Pomegranate Blueberry Juice Beverage® are deceptive because the product consists primarily of“a mixture of cheap apple juice and grape juice concentrates.” Cruz v. Tropicana Prods., Inc., No. 10-62926CA08 (Fla. Cir. Ct., Miami-Dade Cty., filed December 14, 2010).Seeking to certify a statewide class of consumers, the plaintiff claims that Tropicana hoped to tap into the “enormous new market”of those seeking to benefit from the antioxidants in blueberries and pomegranates by creating a “deceptive and misleading label with many elements not required by state or federal regulations.” The complaint refers to a September 2010 jury verdict in California finding that Welch Foods, Inc. marketed its 100% Welch’s White Grape Pomegranate® beverage deceptively with labeling that was “literally true” but “had a tendency to deceive a substantial number of consumers.” The complaint also notes…
A Florida man has sued a Houston’s restaurant and its manager for failing to train servers to explain to patrons how to eat grilled artichokes, contending that their negligence led to his hospitalization and exploratory bowel surgery. Carvajal v. Hillstone Restaurant Group, Inc., No. 10-57757 CA 03 (Fla. Cir. Ct., Miami Dade Cty., filed October 27, 2010). He alleges ordering a special item offered by a server, “which Plaintiff advised he had never seen or heard of previously.” According to the complaint, plaintiff Arturo Carvajal was not instructed that the outside portion of the leaf should not be eaten, although the restaurant “had a duty to use reasonable care with respect to the serving and explanation of items not described on the menu; which by their appearance as served appeared wholly consumable.” He is seeking damages in excess of $15,000.
A putative class action has been filed in a federal court in Florida against POM Wonderful, LLC and its holding company, alleging that the defendants deceived consumers in the state by making health-benefit claims for POM’s pomegranate juices, pills, extracts, and concentrated liquids. Cortez v. POM Wonderful, LLC, No. 10-23680 (S.D. Fla., filed October 13, 2010). Alleging damages in excess of $5 million, the named plaintiff cites the Food and Drug Administration’s warning letter to the company and the Federal Trade Commission’s recently filed administrative complaint to support claims that the company’s representation about its products are “false and misleading.” Among the product claims alleged to be false are that it will prevent, mitigate and/or treat atherosclerosis, blood flow/pressure, prostate cancer, erectile dysfunction, cardiovascular disease, LDL cholesterol, and other age-related medical conditions. Seeking to certify a statewide class of consumers who bought the products from September 29, 2006, to the…
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…
A putative class alleging that the extra virgin olive oil sold in the United States does not meet the “extra virgin” standard has filed consumer fraud claims against several of the largest importers of the product in a state court in Florida. Nachio v. Am. Rice, Inc., No. 10-33154 (Fla. Cir. Ct., filed August 13, 2010). Like the plaintiffs in a class action filed in California, named plaintiff Joseph Nachio refers to the June 2010 extra virgin olive oil study conducted by University of California at Davis’s Olive Oil Center researchers who concluded that the defendants’ products are not “extra virgin” olive oil. Additional information about that litigation appears in Issue 359 of this Update. Nachio contends that the time-sensitive process required to produce extra virgin olive oil makes it impossible for defendants to sell the quantities they do, and that they sell true extra virgin olive oil solely in countries…
A putative class action has been filed against the maker of POM Wonderful® pomegranate (PWP) juice in a Florida state court, alleging that the company is misleading consumers by marketing its product “as having special health benefits, including but not limited to, the prevention, mitigation, and or treatment of the following: (a) atherosclerosis; (b) Blood Flow/Pressure; (c) Prostate Cancer; (d) Erectile Function; (e) cardiovascular disease; (f) Reduce LDL cholesterol; (g) and other age related medical conditions.” Giles v. POM Wonderful, LLC, No. 10-32192 (Fla. Cir. Ct., Broward Cty., filed August 6, 2010). Seeking to represent a statewide class of consumers, the plaintiff claims, “In sum, the message is drink PWP and it will keep you young forever.” According to the complaint, the company has no reasonable basis for making its health-related marketing claims and has, in fact, been warned by the Food and Drug Administration that the product’s labeling directly…
A federal court has certified class claims against General Mills alleging that the company’s advertising for its premium-priced Yo-Plus® yogurt violates the Florida Deceptive and Unfair Trade Practices Act because the product does not provide any digestive health benefits that cannot be obtained from eating normal yogurt. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., decided January 11, 2010). The named plaintiff claimed that the company’s ads and promotional materials convinced her to try the product and that she consumed it on a regular basis for about a year. She claimed that her digestive health was the same before, during and after eating Yo-Plus® and thus, the company’s claims for digestive health benefits beyond those provided by normal yogurt are false, misleading and likely to deceive the public. She also alleged breach of express warranty and sought to certify a class of “[a]ll persons who purchased YoPlus in the State…
