A California federal court has approved a settlement in a class action alleging that Trader Joe’s labels items with synthetic ingredients as “All Natural.” Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., order entered July 11, 2014). Trader Joe’s will pay $3.375 million to a settlement fund to compensate class members with a proof of purchase for all products and members without a proof of purchase for up to 10 items, with leftover funds to be distributed as products to class members at retail locations throughout the United States. Plaintiffs’ counsel will receive $950,000 of the fund. In 2011, plaintiffs accused Trader Joe’s of labeling several of its food products as “All Natural” or “100% Natural” despite containing one or more synthetic ingredients, which they alleged constituted fraud and unlawful business practices under federal and California law. The parties attended three mediation sessions supervised by a retired judge, but they…
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Following a year-long investigation of Whole Foods Markets in California, state and county weights and measures inspectors found that it was charging more than advertised for a wide variety of food items; the company has reportedly agreed to pay nearly $800,000 in penalties and to conduct its business for the next five years under strict oversight. According to the Santa Monica City Attorney’s Office, Whole Foods (i) failed to account for the weight of containers when charging for self-serve foods at the salad and hot bars, (ii) labeled foods sold by pound with higher weights than actually contained in the package, and (iii) sold items by the piece that should have been sold by the pound. Retailers bound by the judgment include those operated by Whole Foods Market California, Inc. and Mrs. Gooch’s Natural Foods Markets, Inc. The company has also agreed to appoint two “state coordinators” who will oversee…
A federal court in California has granted in part and denied in part the motion to dismiss in a putative class action alleging that Whole Foods Market Group misleads consumers by labeling certain food products containing sodium acid pyrophosphate (SAPP) as “All Natural.” Garrison v. Whole Foods Mkt. Group, Inc., No. 13-5222 (N.D. Cal., order entered June 2, 2014). Additional information about the complaint appears in Issue 504 of this Update. The court ruled that (i) the claims were not preempted under federal law; (ii) the primary jurisdiction doctrine did not apply (given the lack of a clear indication that the U.S. Food and Drug Administration intended to revisit its decision not to adopt formal regulations as to the meaning of “natural”); (iii) the plaintiffs sufficiently pleaded a cause of action (with the exception of allegations pertaining to marketing in various media and advertising—these claims were dismissed with leave to amend);…
A California resident has filed a putative nationwide class action against Trader Joe’s alleging that the company fails to disclose “the dangerously high” sodium content contained in its sunflower kernels and sunflower shells and then markets the products as a “good” or healthy snack. DiSimone v. Trader Joe’s Co., No. BC544924 (Cal. Super. Ct., Los Angeles Cty., filed May 6, 2014). Claiming that the company deceives consumers by listing a single serving “with Shells” as containing 690 milligrams (mg) of sodium or “29%” of the total daily value established by the U.S. Food and Drug Administration (FDA), the plaintiff contends that the seeds and shells, which are also placed in the mouth, actually contain more than 2,350 mg of sodium, an amount that far exceeds a large order of McDonald’s French fries at 350 mg of sodium. The plaintiff further asserts that the average consumer will eat more than one…
Researchers with Cornell University and the Yale Rudd Center for Food Policy and Obesity have reportedly found that eye contact with cereal box spokes-characters “increased feelings of trust and connection to the brand, as well as choice of the brand over competitors.” Aviva Musicus, et al., “Eyes in the Aisles: Why is Cap’n Crunch Looking Down at My Child?,” Environment and Behavior, 2014. After analyzing 65 cereals in 10 grocery stores, the study’s authors claimed that cereals marketed to children were generally placed on the bottom two shelves and displayed characters featuring “a downward gaze at an angle of 9.67 degrees,” while those marketed to adults were generally placed on the top two shelves and displayed characters featuring a slightly upward gaze at an angle of 0.43 degrees. In addition, the study reported that participants asked to evaluate sample cereal boxes were more likely to choose one brand over another…
A federal court in California has determined that a consumer case alleging that Safeway was negligent for failing to notify customers of food recalls may proceed. Hensley-MacLean v. Safeway, Inc., No. 11-01230 (N.D. Cal., order entered April 7, 2014). According to the court, Safeway failed to justify a post-sale exception to California’s negligence law, which imposes a general duty of care. The plaintiffs claim that Safeway should—and could easily—notify customers of food recalls after they have purchased the recalled products because Safeway collects contact information from its loyalty card customers. Safeway argued that it had no duty to warn customers after they have taken the products out of the store. Rejecting the company’s argument, the court observed that Safeway could clearly foresee that its customers would consume the products purchased at its stores. The court also identified a number of previous decisions holding that the manufacturer’s duty extends beyond the…
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 U.S. Food and Drug Administration (FDA) has issued an advance notice of proposed rulemaking under the Food Safety Modernization Act (FSMA) that seeks information to help the agency “implement and enforce” amendments to the reportable food registry (RFR) provisions of the Federal Food, Drug, and Cosmetic Act. Among other things, the new provisions permit FDA to (i) require that parties submit to FDA “consumer-oriented” information regarding certain reportable foods—defined as foods for “which there is a reasonable probability that use of, or exposure to, such food will cause serious adverse health consequences or death to humans or animals”; (ii) use such information to create consumer notification summaries for the agency’s Website; and (iii) obligate certain grocery stores that sell reportable food to display the notification summaries. FDA has requested input from the food industry, consumer organizations and other parties on certain topics, including (i) “what information should be required in…
The nation’s two largest grocery stores, Kroger and Safeway, have pledged not to sell genetically engineered (GE) salmon, joining a growing group of stores, including Target, Whole Foods, Trader Joe’s, Aldi, H-E-B, Meijer, Hy-Vee, Marsh, and Giant Eagle, that have already rejected the GE salmon currently under final review by the U.S. Food and Drug Administration (FDA). Nearly 2 million people, including scientists, fishermen, business owners, and consumers, have written to FDA opposing its approval of GE salmon, reportedly the first of some 30 other species of GE fish under development. If approved, the salmon would be the first GE animal in the U.S. food supply, and FDA has indicated that it will likely not be labeled as a product of genetic engineering. See Friends of the Earth News Release, March 3, 2014.
