A federal court in Alabama has dismissed breach of contract and warranty claims filed against a company that makes Florida Natural® orange juice and markets it as “fresh,” “100%” or “pure,” finding that the plaintiff lacked standing to bring the claims on behalf of a putative class of purchasers. Veal v. Citrus World, Inc., No. 12-801 (N.D. Ala., decided January 8, 2013). The court refused to allow the plaintiff to amend his complaint for a fourth time on the grounds that no amendment can cure its deficiencies and bad faith. According to the court, “This is plaintiff’s counsel’s fourth attempt (not counting the arguments before the MDL [multidistrict litigation] panel) to pursue a class action against defendant based on the same inherently flawed theory of liability. Upon not being included as class counsel in the MDL, plaintiff’s counsel returned here and went shopping for plaintiffs in an attempt to manufacture a…
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A federal multidistrict litigation (MDL) court in California has certified a nationwide class of consumers who purchased a POM Wonderful pomegranate juice product between October 2005 and September 2010 and allege that the company’s health-related benefit claims are false and misleading. In re POM Wonderful LLC Mktg. & Sales Practices Litig., MDL No. 2199 (C.D. Cal., decided September 28, 2012). The suit was filed under California’s False Advertising Law, Unfair Competition Law and Consumers Legal Remedies Act. While POM argued that a nationwide class could not be certified because California law cannot be applied to consumers in other states, the company failed to specifically identify conflicts between the laws of California and other states. According to the court, the company simply cited a Ninth Circuit decision “[p]erhaps relying upon the mistaken assumption that California law cannot be applied to a nationwide class as a matter of law,” and included an exhibit…
A federal court in the District of Columbia has dismissed the declaratory judgment action that POM Wonderful filed against the Federal Trade Commission (FTC) shortly before the Commission brought an enforcement action against the pomegranate product producer. POM Wonderful LLC v. FTC, No. 10-1539 (D.D.C., decided September 30, 2012). More information about the complaint and FTC’s motion to dismiss appears in Issues 364 and 373 of this Update. According to the court, “[t]he balance of relevant factors counsels against exercising jurisdiction over this action.” Among other matters, the court found that (i) the declaratory judgment action would not fully resolve the parties’ claims because they would “still have to litigate whether POM’s health claims about its products were false, misleading, and unsubstantiated in violation of the FTC Act”; (ii) “other overlapping proceedings are pending” and POM can raise arguments in those proceedings that it has raised in the declaratory judgment…
A federal court in California has granted in part the motion to dismiss filed by the defendant in a putative class action alleging that it falsely misrepresents its smoothie kits as “All Natural” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides.” Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., order entered August 25, 2012). Additional information about the case appears in Issue 432 of this Update. The court agreed with Jamba Juice that the plaintiff had failed to state a warranty claim under the Magnuson-Moss Warranty Act, because “the statement ‘All Natural’ is a general product description rather than a promise that a product is defect free.” Still, the court dismissed the plaintiff’s claim for breach of express warranty under the Act with leave to amend “to the extent some other basis may exist for this…
Welch Foods, Inc. is the most recent recipient of a letter from the Center for Science in the Public Interest (CSPI) warning the company that, if not otherwise resolved, the watchdog’s claims that Welch is making deceptive health-benefit representations about its fruit snacks, spreads and juices will be taken to court for injunctive relief. According to the August 14, 2012, letter, the types of matters about which CSPI is most concerned are (i) “Welch Foods claims that its 100% Fruit Juice product line is heart-healthy and may promote overall health”; (ii) “Welch Foods claims that its Fruit Snacks, Fruit Juice Cocktails, Spreads, and 100% Fruit drinks ‘Reward Your Heart’ and are heart-healthy products”; and (ii) “Welch Foods claims that its Fruit Snacks products are nutritious and healthful to consume.” CSPI contends that, to the contrary, the products contribute to “insulin resistance and obesity, and may thus promote heart disease and…
The Judicial Panel on Multidistrict Litigation (JPML) has consolidated before a multidistrict litigation (MDL) court in New Jersey six lawsuits alleging that Tropicana deceptively markets its not-from-concentrate orange juice as “100% Pure & Natural,” despite extensive processing. In re: Tropicana Orange Juice Mktg. & Sales Practices Litig., MDL No. 2353 (J.P.M.L., order entered June 11, 2012). New Jersey was selected as the appropriate venue because plaintiff’s counsel in the case filed there “appear to have significantly investigated and developed the factual issues underpinning their complaint.” Other plaintiffs apparently dismissed their complaints to join the New Jersey action, and JPML found that the court there had the resources to devote to the litigation and an experienced judge not currently overseeing an MDL. The panel refused to include a potential tag-along case brought by a plaintiff who argued for “industry-wide centralization,” that is, an MDL that would include all orange juice manufacturers…
An administrative law judge (ALJ) has upheld some of the Federal Trade Commission’s (FTC’s) allegations that POM Wonderful violated federal law by making deceptive claims in some advertisements that the company’s pomegranate juice and related products treat, prevent, or reduce the risk of heart disease, prostate cancer and erectile dysfunction. In re: POM Wonderful LLC, No. 9344 (FTC, decided May 17, 2012). The ALJ’s initial decision is deemed the decision of the FTC 30 days after it is served on the parties, unless appealed or placed on FTC’s docket on its own motion. According to the ALJ, some, but not all, of POM’s ads could be interpreted as containing an “implied claim” that the company’s products treat, prevent or reduce the risk of some diseases and that “these effects were clinically proven.” The ALJ also determined that (i) “the appropriate level of substantiation for claims that a product treats, prevents,…
According to a news source, the Judicial Panel on Multidistrict Litigation (JPML) will conduct a hearing May 31, 2012, to consider the petitions filed by two consumer groups seeking to consolidate, for pretrial proceedings, putative class actions filed in various federal district courts alleging that companies selling orange juice as “All Natural” mislead consumers because the products undergo processing to increase shelf-life. In re: Orange Juice Mktg., MDL No. 2353 (J.P.M.L., May 31, 2012, hearing); In re: Simply Orange Juice Mktg. & Sales Practices Litig., MDL No. 2361 (J.P.M.L., May 31, 2012, hearing). Additional details about the litigation appear in issues 425 and 431 of this Update. See Bloomberg BNA Product Safety & Liability Reporter, April 30, 2012.
A California resident has filed a putative class action in federal court against the Jamba Juice Co., alleging that it falsely advertises its fruit smoothie kits as “All Natural,” when they actually contain “unnaturally processed, synthetic and/or non-natural ingredients,” such as ascorbic acid, citric acid, xanthan gum, and steviol glycosides. Anderson v. Jamba Juice Co., No. 12-1213 (N.D. Cal., filed March 12, 2012). Plaintiff Kevin Anderson brings the action in federal court under the Class Action Fairness Act, claiming that the damages will exceed $5 million and that the class includes more than 100 individuals who have citizenship diverse from that of the defendant. Anderson alleges that he and a nationwide class of consumers “did not receive the benefit of their bargain when they purchased the smoothie kits. They paid money for a product that is not what it claims to be.” Contending that the defendant “is a leading healthy…
The National Consumers League has written to Food and Drug Administration (FDA) Commissioner Margaret Hamburg, asking the agency to take enforcement action against several companies that label their products as “100%” lemon juice, while they actually contain 35 percent or less lemon juice. According to the March 21, 2012, letter, “The products tested omit requisite amounts of real lemon juice and substitute water, citric acid, and in some cases sugar. The cheating is concealed by labeling the products as ‘100%’ lemon juice or simply ‘Lemon Juice from concentrate,’ and the producers make it appear that the products are of greater value than they really are.” Included with the letter are labels from four different products and lab reports from the company that apparently tested them. The National Consumers League characterizes the juice as “heavily diluted with water beyond what is necessary and appropriate to reconstitute the product.” Its letter also…
