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.…
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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.…
The Wisconsin-based Cornucopia Institute has asked the Federal Trade Commission (FTC) to investigate labeling associated with Whole Foods Market, Inc.’s Responsibly Grown fresh produce rating system for potential consumer fraud and mislabeling. According to a June 23, 2015, letter to the director of FTC’s Bureau of Consumer Protection, Cornucopia is “concerned that Whole Foods has not met the standards set forth in its recently developed ‘Responsibly Grown’ produce rating system in violation of its stated guidelines, thus grossly misrepresenting the production practices utilized in growing some of the produce it offers for sale to its customers.” Cornucopia suggests that “expedited communication” with Whole Foods resulting in a consent agreement under which signage and labeling related to the rating program are immediately removed “might best serve the public rather than investing taxpayer resources in a time-consuming comprehensive investigation that might result in monetary fines or other penalties.” Issue 570
The New York City Department of Consumer Affairs (DCA) has alleged that Whole Foods Market, Inc. “routinely overstated the weights of its prepackaged products—including meats, dairy and baked goods— resulting in customers being overcharged.” According to a June 24, 2015, press release, DCA found mislabeled weights on 80 different types of products sold at New York City locations, with 89 percent purportedly failing to meet federal standards “for the maximum amount that an individual package can deviate from the actual weight.” “The overcharges ranged from $0.80 for a package of pecan panko to $14.84 for a package of coconut shrimp,” claims the agency. “The fine for falsely labeling a package is as much as $950 for the first violation and up to $1,700 for a subsequent violation. The potential number of violations that Whole Foods faces for all pre-packaged goods in the NYC stores is in the thousands.” In particular,…
A Vermont federal court has denied a preliminary injunction that would have prevented from taking effect the nation’s first state law requiring the labeling of food products manufactured with genetically modified organisms (GMOs). Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., order entered April 27, 2015). Several food industry groups challenged the statute’s provisions requiring GMO labeling and preventing foods with GMO ingredients from bearing a “natural” label. The court first examined the industry groups’ claim that the statute violates the dormant Commerce Clause of the U.S. Constitution. It agreed with the groups’ argument that the statute seems to prohibit the use of “natural” in signage and advertising “regardless of where or how those activities take place,” and accordingly refused to dismiss Vermont’s motion to dismiss that aspect of the Commerce Clause claim. The rest of the Commerce Clause claims, based on the argument that the statute would require…
The estate and survivors of an 89-year-old woman who died after eating imported pomegranate seeds linked to a Hepatitis A outbreak have filed a wrongful death lawsuit against Townsend Farms Inc., Costco Wholesale Corp. and others alleging strict liability for a product defect, negligence and breach of implied warranties. Schelitzche v. Townsend Farms Inc., No. BC576437 (Cal. Super. Ct., Los Angeles Cty., filed March 23, 2015). The complaint details the 2013 outbreak of Hepatitis A virus, which the U.S. Food and Drug Administration, Centers for Disease Control and Prevention, and state and local health agencies apparently traced to 3-pound bags of Townsend Farms Organic Antioxidant Blend frozen berries sold at Costco. The plaintiffs seek wrongful-death and survival damages and other general, punitive and exemplary damages. While the plaintiffs’ suit is the first to claim wrongful-death damages, details of other lawsuits stemming from the same Hepatitis A outbreak appear in Issues…
A California appeals court has affirmed a lower court’s ruling dismissing a putative class action alleging that Safeway misbranded its Lucerne-brand of Greek yogurt because U.S. Food and Drug Administration (FDA) regulations prohibit the use of “milk protein concentrate” (MPC) in foods labeled as yogurt. Tamas v. Safeway, Inc., No. RIC1206341 (Cal. Ct. App., 4th Dist., Div. 3, order entered February 23, 2015). The plaintiff argued that a 1981 FDA regulation determining yogurt’s “Standard of Identity” (SOI) dictated what ingredients are allowable in products sold as yogurt despite the agency’s stay of the regulation soon after it was issued. FDA promised to schedule a public hearing on the regulation but, as of January 2009, “due to competing priorities and limited resources, FDA has not held a public hearing to resolve these issues and the effective date for these provisions remains stayed. Therefore, these provisions were never in effect. Consequently, cultured milk…
Shook, Hardy & Bacon Agribusiness & Food Safety Partner Jim Muehlberger and Associate Jara Settles discuss the modern consumer protection landscape in a January 2, 2015, expert analysis published in Law360. Noting that food lawsuits “tend to garner significant notoriety,” the authors focus on recent litigation against Whole Foods Market Inc. alleging that the health-food purveyor “benefited from misleading labeling claims on almond milk,” which a third-party certified as free of ingredients made with genetically modified organisms (GMOs). Richard v. Whole Foods Mkt. Cal. Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed Nov. 7, 2014). “In a long line of consumer protection putative class actions aimed at food companies, Richard is somewhat unique in targeting a retailer,” explain Muehlberger and Settles. “In most situations, plaintiffs have targeted the manufacturers of food and beverage products they deem to be improperly labeled… As a retailer, Whole Foods likely had no hand in…
Three consumers have filed three separate putative class actions against Whole Foods Inc., Wegmans Food Markets Inc. and Acme Markets Inc. in New Jersey state court alleging that the grocery chains falsely represent their bread and bakery products as freshly made in-store. Mladenov v. Whole Foods, docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014); Mladenov v. Wegmans Foods Mkts., Inc., docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014); Mao v. Acme Mkts., Inc., docket number unavailable (Super. Ct. N.J., Camden Cty., filed December 16, 2014). The complaints allege violations of the New Jersey Consumer Fraud Act based on advertisements indicating that the bread and bakery products sold by the three companies were made in-store daily despite being “frozen, delivered to its stores, and then re-baked or partially baked in store,” according to the complaint against Acme. Each plaintiff seeks class certification, injunctive…
A California federal court has granted plaintiffs’ motion for summary judgment in a case alleging that Safeway charged a class of consumers more than the prices permitted under the terms of its online service contract when the consumers purchased groceries from the grocer’s website. Rodman v. Safeway, No. 11-3003 (order entered December 10, 2014). Safeway sells groceries via its Safeway.com site, where it requires users to accept its Terms and Conditions upon registration. That agreement includes a provision about prices varying from order to order: “The prices quoted on our web site at the time of your order are estimated prices only. You will be charged the prices quoted for Products you have selected for purchase at the time your order is processed at checkout. The actual order value cannot be determined until the day of delivery because the prices quoted on the Web site are likely to vary either…
