The U.S. Supreme Court has denied certiorari in a Federal Trade Commission (FTC) lawsuit against POM Wonderful LLC and Roll Global LLC alleging the companies made false or misleading health claims about their pomegranate-derived products. POM Wonderful LLC v. FTC, No. 15-525 (U.S., certiorari denied May 2, 2016). The U.S. Court of Appeals for the District of Columbia previously upheld a Commission decision finding POM misled consumers by claiming its products treat, prevent or reduce the risk of heart disease and prostate cancer, with some claims purported to be supported by clinical studies. “I am pleased that the POM Wonderful case has been brought to a successful conclusion,” FTC Chair Edith Ramirez said in a May 2, 2016, press release. “The outcome of this case makes clear that companies like POM making serious health claims about food and nutritional supplement products must have rigorous scientific evidence to back them up.…
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The European Court of Justice (ECJ) has reportedly affirmed a ruling that Spanish citrus growers must label their fruits when they have used chemicals or preservatives in post-harvest processing. Spain challenged the European Commission’s (EC’s) power to enact the rule, arguing the U.N. Economic Commission for Europe had set voluntary standards only. The lower court noted that even though the EC must consider U.N. standards, it is not required to adopt those guidelines, reasoning that the ECJ reportedly echoed in its ruling. Spain also argued that the rule created an unconstitutional distinction between citrus growers and growers of other fruit, but the lower court found that citrus fruit is often subjected to higher levels of chemical processing and that citrus peels are used differently than the peels of other fruits and vegetables because they are often added to food for additional flavor. See Wall Street Journal, March 3, 2016. …
Two consumers have reportedly filed a putative class action against Welch Foods, Inc. and Promotion in Motion Cos. alleging their Welch’s fruit snacks products are deceptively advertised as providing vitamins and nutrients despite being “no more healthful than candy.” Atik v. Welch Foods, Inc., No. 15-5405 (E.D.N.Y., filed September 18, 2015). Welch’s packaging advertises its products as produced from “real fruit” despite using only fruit concentrate, the complaint reportedly alleges, and the packaging implies the vitamins in the fruit snacks are derived from the fruit rather than introduced during the production process. This infusion allegedly runs afoul of the U.S. Food and Drug Administration’s “jelly bean rule,” which targets products that would not otherwise meet the agency’s standards for healthful foods without the addition of vitamins during the production process. See FoodNavigator-USA, September 23, 2015. Issue 580
The European Court of Justice has refused to void a lower court’s decision against Dole Foods confirming an $83 million fine shared with other companies resulting from a finding of collusion to fix the prices of bananas sold in several European countries. Dole Food & Dole Germany v. Commission, No. C-286/13 P (E.C.J., order entered March 19, 2015). Dole sought to annul or reduce its fine, arguing the commission had not proven that the weekly communications between banana-producing companies just before prices were set were intended to fix prices. The company also argued that the lower court had lumped price quotes for green bananas and yellow bananas when the price-quoting schemes are separate. The prices of some bananas were set weeks before they were sold, while other companies sold their inventories at different times, Dole argued; as a result, the bananas from different companies were not in direct competition. The…
A Colorado state court has approved the settlements of several wrongful death and personal injury suits against 14 defendants—including Jensen Farms—stemming from the sale of cantaloupe tainted with Listeria that killed 33 people in 2011. Exley v. Jensen Farms, No. 2011-1891 (Colo. D.C., Arapahoe Cty., order entered March 5, 2015). The court dismissed 24 of 26 cases pursuant to the settlement agreement reached in February 2015, remanded one case to a Texas court and left the dismissal of the last case to a probate court because it regards a minor. The settlement terms are confidential, but according to plaintiffs’ attorney Bill Marler, the medical expenses total more than $12 million. Details about the criminal charges against the brothers who own Jensen Farms appear in Issue 500 of this Update. See Minneapolis Star Tribune, March 11, 2015. Issue 558
The University of California, Davis, and the California Strawberry Commission (CSC) have issued a joint press release announcing the settlement of CSC’s lawsuit and the university’s countersuit. CSC initially alleged that the university allowed two of its strawberry developers to leave its employment to privatize the cultivation process using money provided by CSC growers, and the university filed a counterclaim accusing CSC of unfair business practices. Conclusion of the lawsuit coincided with the university’s hiring of Steven Knapp, former global director of Monsanto’s Vegetable Research and Development, who will oversee the university’s new strawberry breeding program. “Over the next five years, UC Davis will release new strawberry varieties available to all farmers, and the California Strawberry Commission will assist UC Davis in its identification of new commercial varieties,” the press release states. In addition, “a new strawberry advisory committee will be formed, comprised of university representatives, strawberry farmers and commission…
A federal court in California has decertified a damages class in litigation alleging that Dole Packaged Foods, LLC misleads consumers by labeling 10 of its fruit products as “All Natural Fruit” because they contain allegedly synthetic ingredients ascorbic acid and citric acid. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (N.D. Cal., order entered November 6, 2014). The court found flaws in the regression model that the plaintiff’s expert (Oral Capps) used to determine the price premium attributable to the company’s use of the “All Natural Fruit” label statements, finding that the model “does not sufficiently isolate the price impact” of the labeling statement. The court disagreed with Dole that the expert performed a “price” regression rather than a “sales” regression and thus “measured the wrong thing.” According to the court, while the initially proposed analysis differed from the one actually carried out, given that the expert had initially proposed…
Three putative class action lawsuits have been filed against Kellogg Co. in a California federal court alleging that the company misleads consumers by labeling its Super Mario Fruit Snacks® and Pop Tarts® as “Made with Real Fruit.” Spevak v. Kellogg Co., No. 13-2767, Barnes v. Kellogg Co., No. 13-2768, Ford v. Kellogg Co., No. 13-2770 (N.D. Cal., filed June 14, 2013). Each plaintiff is represented by Benjamin Lopatin in the Law Offices of Howard Rubinstein. Plaintiff Alicia Spevak alleges that the “real fruit” claim is misleading because the fruit snack product “merely contains de minimis real fruit and unhealthy, unnatural ingredients, chemicals and preservative additives, in addition to merely containing apple puree rather than real fruit, which a reasonable consumer would not expect from a product claiming to be ‘Made with Real Fruit.’” Spevak seeks to represent a class of California product purchasers and alleges unfair, fraudulent and unlawful business practices; false and…
A California resident has filed a strict liability lawsuit against a food retailer and the Oregon-based company that produced a frozen organic fruit mix allegedly implicated in a widespread Hepatitis A outbreak. Brackenridge v. Townsend Farms Corp., No. BC510633 (Cal. Super. Ct., Los Angeles Cty., filed June 3, 2013). According to the complaint, Lynda Brackenridge contracted the disease after purchasing the frozen fruit blend and remains hospitalized in isolation and in guarded condition. Seeking past and future economic and non-economic damages in excess of $25,000, court costs and interest, the plaintiff also alleges negligence and breach of implied warranties.
Dole Food Co. has filed a motion to dismiss or strike claims in a putative class action alleging that its food product labels mislead consumers. Brazil v. Dole Food Co., Inc., No. 12-1831 (N.D. Cal., motion filed August 13, 2012). Identifying the plaintiff as a “repeat class representative” who recently received an incentive award in another lawsuit, Dole argues that his claims are preempted under federal law, he lacks standing because he has not been injured, the claims are not plausible, and he has failed to state a claim under California law. The company also notes that the case is “one of 24 (and counting) nearly identical ‘misbranding’ class action cases filed during a 15-week blitz by nine law firms from six different states,” thus making it an “assembly-line” complaint that follows “a common recipe.” In summary, Dole contends, “By this lawsuit, Plaintiff seeks colossal damages, punitive damages, and a nationwide injunction…
