A consumer has filed a putative class action against Campbell Soup Co. alleging the company misrepresents its Healthy Request gumbo soup as “healthy” despite containing trans fat. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., filed April 25, 2016). Campbell has branded itself as “one of the world’s leading providers of healthy and nutritious foods,” the complaint asserts, in part by establishing a research group, Campbell’s Center for Nutrition & Wellness, and obtaining “heart-check” certification from the American Heart Association (AHA) for some of its products. Despite its marketing, Campbell adds “partially hydrogenated soybean oil, containing artificial trans fat, to Healthy Request Gumbo,” the plaintiff argues. The complaint details health risks reportedly linked to the consumption of trans fat, including increased risks of cardiovascular ailments, type 2 diabetes and Alzheimer’s disease. The “statements, images, and emblems” appearing on Healthy Request Gumbo’s label—the “Healthy Request” branding, “heart healthy” claim, vignettes of…
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A consumer has filed a putative class action against Carrington Tea Co. alleging the company advertises its coconut oil as “a healthy alternative to butter and various cooking oils, despite that coconut oil is actually inherently unhealthy, and a less healthy option to these alternatives.” Boulton v. Carrington Tea Co., No. B609360 (Cal. Super. Ct., Los Angeles Cty., filed February 4, 2016). Coconut oil “is approximately 90 percent saturated fat” and “increases the risk of [coronary heart disease] and stroke” as well as other negative health effects, the complaint asserts. Despite these effects, the plaintiff argues, Carrington markets its coconut oil as healthy, and further, “Carrington’s labeling claims are designed to conceal or distract consumers from noticing that its Carrington Farms coconut oils are pure fat” by including the phrase “Healthy Foods for a Healthy Soul” and claiming that “Carrington Farm’s cold-pressed organic extra virgin coconut oil is the most…
Kind LLC has filed a citizen petition to the U.S. Food and Drug Administration (FDA) challenging regulations governing the use of “healthy” on food labeling, arguing that specific nutrient levels in a product do not dictate whether it is “healthy.” The petition asks FDA to reevaluate its nutrient content claim regulations for consistency with current federal dietary recommendations and issue rules accordingly. Kind filed the petition months after FDA issued the company a warning letter—and the company was targeted by a consumer class action on the same subject—about the use of “healthy” on Kind snack bars, which contain more than 1 gram of saturated fat due to their nut content. Additional details about the letter and subsequent lawsuits appear in Issues 562 and 575 of this Update. Issue 586
The U.S. Judicial Panel on Multidistrict Litigation has consolidated 11 putative class actions against Kind LLC alleging that its snack bars are misleadingly marketed as “healthy” despite a high saturated fat content and low levels of nutrients. Kind LLC “All Natural” Litigation, MDL No. 2645 (S.D.N.Y., transfer order entered August 7, 2015). The court found that the actions involved common questions of fact, and all parties favored centralization except one plaintiff who did not oppose the motion. The lawsuits were filed after the U.S. Food and Drug Administration sent a letter to Kind warning against the use of “healthy” on several of its products. Details about the first of these lawsuits appear in Issue 562 of this Update. Issue 575
A California federal court has denied Gerber Products Co.’s attempt to dismiss a false advertising lawsuit about the company’s Good Start® Gentle based on the reasoning in a June 2015 Fourth Circuit decision that significantly changed the law. Zakaria v. Gerber Prods. Co., No. 15-0200 (C.D. Cal., order entered July 14, 2015). The June decision found that, “so long as there is a ‘reasonable difference of scientific opinion’ as to the merits of a manufacturer’s health claim, the alleged actual falsehood of that health claim cannot be the basis for a cause of action under several consumer protection laws.” In re GNC Corp., No. 14-1724 (4th Cir., order entered June 19, 2015). After the court denied its motion to dismiss on June 18, Gerber filed for reconsideration, arguing that In re GNC “has changed the law of false advertising.” The court, noting that the Fourth Circuit decision was not binding…
After examining the sodium content of packaged food products sold throughout the United States in 2009, Centers for Disease Control and Prevention (CDC) researchers have reported that “fewer than half of selected food products met Food and Drug Administration [FDA] sodium-per-serving conditions for labeling as ‘healthy.’” Alexandra Lee, et al., “Sodium Content in Packaged Foods by Census Division in the United States, 2009,” Preventing Chronic Disease: Public Health Research, Practice and Policy, April 2015. Using the 2009 Nielsen ScanTrak data to identify all branded products sold in grocery stores with annual sales of $2 million or more, the study focused on products sold in three U.S. Census divisions—South Atlantic, East North Central and Pacific—representing approximately 50 percent of the U.S. population. These three regions also “reflect places with high (South Atlantic), medium (East North Central) and low (Pacific) prevalence of hypertension.” The authors then identified “products in the 10 food categories that…
Days after the U.S. Food and Drug Administration (FDA) released a March 2015 letter warning Kind LLC against using the word “healthy” to describe several of its products, a consumer filed a class action against the company alleging negligent misrepresentation and violations of California consumer protection statutes. Kaufer v. Kind LLC, No. 15-2878 (C.D. Cal., filed April 17, 2015). The FDA Warning Letter listed the packaging of several products that an agency investigation apparently determined violated the Federal Food, Drug, and Cosmetic Act because the products’ nutrient contents do not meet federal requirements to be described as “healthy.” The letter also warned Kind against the use of “+” or “plus” as well as “No Trans Fats.” The putative class action complaint cites the FDA letter, arguing that the “healthy,” “+” or “plus” and “no trans fats” claims mislead consumers into believing that they are purchasing a healthful product. The plaintiff…
Researchers from the Johns Hopkins Bloomberg School of Public Health have authored an overview of litigation and governmental actions related to health claims on food and beverages marketed to children. Lainie Rutkow, et al., “Legal Action Against Health Claims on Foods and Beverages Marketed to Youth,” American Journal of Public Health, March 2015. By identifying 115 instances of legal action—including consumer class actions and governmental warnings—the authors review “lessons learned for policymakers, practitioners, and other stakeholders seeking to limit the untruthful or misleading marketing of foods and beverages to children.” Those looking to challenge health claims “should first determine whether scientific evidence supports the claim,” the researchers said. In addition, plaintiffs should be selected carefully, they recommend, noting that they “may prefer, if possible, to bring a lawsuit in a state such as California, which has a well-developed body of law about deceptive and misleading advertising and marketing.” In addition,…
Under a settlement agreement approved by a New Jersey federal court, Dakota Growers Pasta Co. will pay $7.9 million to resolve claims that it deceptively markets, advertises and sells Dreamfields Pasta as having a low glycemic index and only five grams of digestible carbohydrates per serving, making it a “healthy alternative to traditional pasta.” Mirakay v. Dakota Growers Pasta Co., Inc., No. 13-4429 (D.N.J., order entered October 20, 2014). The agreement stipulates that for one year, Dakota will remove from its packaging (i) the claims of a low glycemic index and low carbohydrates and (ii) the claim that the product can reduce spikes in blood glucose levels. Dakota will also pay $2.9 million in attorney’s fees and $5 million into a settlement fund for distribution to class members, who will receive $1.99 for every box of pasta ordered online without limit as well as for each box purchased in a store,…
A federal court in California has dismissed a number of claims with prejudice in the second amended complaint filed on behalf of a putative class alleging that the promotion of various snack products made by Procter & Gamble Co. and Kellogg Co. is false and misleading. Samet v. Procter & Gamble Co., No. 12-1891 (N.D. Cal., order entered December 10, 2013). The complaint challenges “0g Trans Fat,” “evaporated cane juice (ECJ),” “healthy and wholesome,” and “fortification” claims for snack chips, riblets and mixed berry snacks. The plaintiffs also bring slack-fill claims that survive. The court will allow “0g Trans Fat” claims to proceed, finding the allegations sufficient, but dismissed them with prejudice as to Pringles chip products that are “reduced fat” or sold in 100-calorie packs, finding that they have “insufficient fat content to require the disclosure in question.” The court also dismissed with prejudice causes of action based on…
