The Ninth Circuit Court of Appeals has affirmed the dismissal of a putative class action filed against Dreyer’s Grand Ice Cream, Inc., alleging that the company misrepresented its products by labeling them as “0g Trans Fat” when they actually contain some trans fat per serving. Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 11-15263 (9th Cir., decided April 5, 2012) (unpublished). According to the court, because the products contain less than 0.5 grams of trans fat per serving, “the Nutrition Facts panel must express this amount as zero” under federal law, and the “same rule applies to the statement” on the front-of-package label. “In essence,” said the court, “Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted.” The court also found…
Tag Archives ice cream
A recent study has claimed that frequent ice cream consumption parallels “the tolerance observed in drug addiction” by reducing “activation in reward-related brain regions (e.g., striatum).” Kyle Burger and Eric Stice, “Frequency ice cream consumption is associated with reduced striatal response to receipt of an ice cream-based milkshake,” American Journal of Clinical Nutrition, March 2012. Researchers apparently used functional magnetic resonance imaging (fMRI) on 151 healthy-weight adolescents to assess their neural responses upon receipt of a milkshake or a tasteless solution. The results evidently indicated that “milkshake receipt robustly activated the striatal regions,” although the fMRIs of youths who indulged in frequent ice cream consumption showed “a reduced response to milkshake receipt in these reward-centered brain regions.” “These findings suggest that intake of energy-dense foods may contribute to down-regulation of reward circuitry, echoing the effects of frequent drug use,” concluded the study authors, who noted “reduced striatal activation” in subjects…
A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 (N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied. Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If…
Chinese authorities have reportedly seized more than 25 tons of melamine-tainted milk powder from Chongqing-based Jixida Food Co. Ltd., detaining three suspects on allegations that the company planned to use the adulterated ingredient in its ice cream. Found in a warehouse, the contaminated stock evidently included some powder purchased approximately one year ago, although officials claimed that none had been used in ice cream production. According to media sources, investigators have traced the milk powder to a trading company in the Guangxi Zhuang Autonomous Region and a dairy in the Inner Mongolia Autonomous Region. The arrests were apparently part of a 100-day food safety campaign organized by the Chongqing police. In 2008, China faced a widespread scandal involving melamine-tainted milk and infant formula that affected an estimated 300,000 people. See The Associated Press and Global Times, April 27, 2011.
Relying on the first-to-file rule, a federal court in New Jersey has transferred a putative class action alleging false advertising for a Breyers ice cream product to a federal court in California that is considering similar litigation. Catanese v. Unilever d/b/a/ Breyers, No. 10-5755 (D.N.J., decided March 28, 2011). The plaintiffs in a number of cases have alleged that ice cream containing alkalized cocoa cannot be advertised as “all natural” because alkalized cocoa powder is chemically altered. The first such case was filed in a California federal court against Ben & Jerry’s, a Unilever company, in September 2010. A nearly identical action involving Breyers products was also filed in a California federal court three days before the Catanese plaintiffs filed their complaint. According to the court, “Conducting this class action in one forum will benefit both the public and private interests by avoiding duplicative litigation.” Information about a similar case filed in…
The London shop that sells ice cream made with donated breast milk has reportedly been cleared to continue selling the product after government tests determined it was fit for human consumption. Additional details about the investigation into Baby Gaga ice cream appear in Issue 384 of this Update. The owner of Icecreamists, the store that sells the product, is apparently considering legal action against the Westminster Council, which confiscated the product for quality-control tests. Owner Matt O’Connor was quoted as saying, “They should have waited until they got the tests back before saying our product could have been a risk to the public.” Meanwhile, attorneys for pop superstar Lady Gaga have sent a cease and desist letter to the ice cream store, accusing it of unfairly cashing in on her name and image and demanding that it stop using the Baby Gaga name. They reportedly called the ice cream “nausea-inducing,”…
The United Kingdom’s Food Standards Agency (FSA) has reportedly launched an investigation to determine if a brand of ice cream made with donated breast milk has violated food safety regulations. Launched recently by a London-area restaurant, Baby Gaga ice cream was evidently pulled by the Westminster City Council after several complaints were lodged about whether the product was safe for human consumption. According to a news source, FSA joined with the council to decide if the ice cream breaches regulations mandating that “food shall not be placed on the market if it is unsafe” and that “food shall be deemed to be unsafe it if it is considered to be (i) injurious to health, and (ii) unfit for human consumption.” An industry source was quoted as saying that human breast milk donated to breast milk banks is required to pass rigorous screening to comply with guidelines established by the National…
A California resident has filed a putative class action against the company that owns the Breyers ice cream brand, alleging violations of consumer protection laws because its 23 chocolate-flavored products are labeled “All Natural” but also contain cocoa processed with alkali. Denmon-Clark v. Conopco, Inc., No. 10-7898 (C.D. Cal., filed October 20, 2010). According to the complaint, “Breyers Ice Cream products containing alkalized cocoa are processed with potassium carbonate which is a recognized synthetic substance.” While acknowledging that the Food and Drug Administration (FDA) does not directly regulate the use of the term “natural,” the plaintiff alleges that the agency has a policy that defines “the outer boundaries of the use of that term” and clarifies that “a product is not natural if it contains color, artificial flavors, or synthetic substances.” The plaintiff alleges that FDA requires products made with an “alkalization” process to include the statement “Processed with alkali.” Breyers’ website…
A federal court in New Jersey has issued a preliminary order granting certification of a nationwide class for settlement purposes in litigation against Unilever U.S., Inc., alleging that reduced-calorie labels for its Breyers Smooth & Dreamy Ice Cream® violated consumer fraud law. Ercoline v. Unilever U.S., Inc., No. 10-01747 (D.N.J., order filed October 4, 2010). The class consists of all U.S. purchasers of Breyers and Unilever branded ice cream products represented as reduced-calorie since April 2004. The court also approved the form and content of the class notice and will allow settlement class members to opt out if they make the request at least 20 days before the final approval hearing, scheduled for March 21, 2011. Objections to the proposed settlement must be filed within 45 days of the class notice publication. According to a news source, Unilever continues to deny that it misrepresented the calorie content of its ice cream…
Two days after the Center for Science in the Public Interest (CSPI) announced that Ben & Jerry’s had agreed to phase out claims that its ice creams and frozen yogurts were “All Natural,” when some product ingredients are processed, a putative class action was filed in a California federal court against the company seeking money damages for false advertising and an injunction to stop the company from making such claims. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., filed September 29, 2010). In August 2010, CSPI claimed that 48 of the company’s products were mislabeled because they contained unnatural ingredients, and the watchdog threatened to bring its concerns to the Food and Drug Administration (FDA). More details about CPSI’s action appear in Issue 360 of this Update. On September 27, CSPI praised the company for amicably resolving the dispute; the company’s response indicated that it would remove the…
