A California federal court has denied a motion to dismiss a putative class action alleging deceptive labeling and advertising of Yogi Green Tea Kombucha, ruling that whether a reasonable consumer believes that kombucha should contain live organisms is a question of fact. Cohen v. East West Tea Co. LLC, No. 17-2339 (S.D. Cal., entered August 2, 2018). The plaintiff alleged that East West Tea falsely labels and advertises its product as kombucha because it purportedly contains no “live organisms." The court found that the parties' definitions of “kombucha” differ and that a reasonable consumer may or may not expect to find live organisms in kombucha. Whether a practice is deceptive is not a matter to be resolved by a motion to dismiss, the court held, noting “mixed case law on whether ambiguity regarding the definition of a word merits a motion to dismiss.”
Tag Archives labeling
The Center for Food Safety and the Center for Environmental Health have filed a lawsuit alleging that the U.S. Department of Agriculture (USDA) failed to comply with mandatory deadlines established by the 2016 Federal Bioengineered Food Disclosure Standards Act, which would require labeling of foods that contain genetically modified organisms (GMOs). Ctr. for Food Safety v. Perdue, No. 18-4633 (N.D. Cal., filed August 1, 2018). The act's statutory deadline for the completion of final regulations implementing the statute and establishing the national disclosure standard was July 29, 2018. The complaint alleges that “[t]he statute preempted state laws requiring [genetic engineering (GE)] labeling, but until USDA issues the regulations, the statute is an empty vessel: there can be no federally required disclosures.” “Due to the lack of mandatory labeling, many American consumers are under an incorrect assumption as to whether the food they purchase is produced with GE,” the plaintiffs allege.…
A New York federal court has dismissed some allegations in a lawsuit alleging Whole Foods Market Group Inc. and Freshbev LLC mislabeled juice products but will allow three claims to proceed. Campbell v. Freshbev LLC, No. 16-7119 (E.D.N.Y., entered July 2, 2018). The plaintiff alleged that the companies mislabeled the juices as unpasteurized, cold-pressed and fresh and that Ripe Craft Juice 12.2 Northeast Blend Cranberry Apple contained more apple juice than cranberry in the blend. The court dismissed the allegation that the "cold-pressed" labels were misleading because the juices are subjected to high-pressure processing, finding that a "reasonable consumer would not mistake the cold-pressed claim to be a claim that pressure was never applied to the juice products." The court permitted three state-law claims related to the "fresh" labels, the "unpasteurized" label on cranberry juice, and the "Cranberry Apple" juice ingredients to continue but dismissed claims for injunctive relief and fraud.
Utz Quality Foods LLC and Good Health Natural Products Inc. face a potential class action alleging that the companies replaced a blend of vegetable-derived ingredients with synthetic additives in their Extra Goodness! products, including vegetable straws and chips. Feldman v. Utz Quality Foods, LLC, No. 18-6004 (S.D.N.Y., filed July 3, 2018). The complaint alleges that the companies deceptively marketed and misbranded the snacks, which were previously made with a proprietary blend of spinach, broccoli, carrots, tomatoes, beets and shiitake mushrooms. The plaintiff contends that Utz and Good Health stopped buying the blend in December 2016 and replaced it with a "cheaper synthetic blend" but did not update the ingredient list for more than a year. Moreover, the plaintiff contends that the current product does not contain "significant amounts of the vegetables or vegetable-derived vitamins depicted, and are not healthful." Claiming deceptive acts or practices, false advertising, breach of warranties and unjust enrichment,…
Federal prosecutors in Chicago are seeking an injunction against Kingdom Farms Wholesale Meats Inc. for allegedly packaging, selling and transporting products without federal marks of inspection and required labeling. U.S. v. Kingdom Farms Wholesale Meats Inc., No. 18-4155 (N.D. Ill., filed June 14, 2018). The complaint asserts that Kingdom Farms removed products from properly labeled shipping containers and repackaged and sold them without inspection marks and labeling, applied inspection labeling without authorization, and reused properly labeled shipping containers without authorization. The U.S. Attorney's Office alleges the defendants’ actions violated the Poultry Products Inspection Act and the Federal Meat Inspection Act and seeks a permanent injunction restraining them from misbranding or mislabeling products and compelling their compliance with the laws.
A Missouri federal court has dismissed with prejudice a putative class action alleging Dr Pepper Snapple Group Inc. mislabels Canada Dry Ginger Ale because it does not contain ginger. Webb v. Dr Pepper Snapple Grp. Inc., No. 17-0624 (W.D. Mo., entered June 21, 2018). The court approved a stipulated voluntary dismissal filed by the named plaintiff. In April 2018, the court denied the beverage maker’s motion to dismiss, finding the plaintiff had adequately pleaded all of the seven counts alleged.
A consumer has filed a lawsuit alleging that the packaging for Chicago Bar Co.'s RXBAR misleads consumers about the ingredients of the product. Pizzirusso v. Chicago Bar Co., No. 18-3529 (E.D.N.Y., filed June 15, 2018). RXBAR and RXBAR Kids products feature a list of ingredients on the front of the package—for example, the blueberry flavor's packaging reads, "3 Egg Whites, 6 Almonds, 4 Cashews, 2 Dates, No B.S."—with an additional ingredient list on the back of the package. According to the complaint, both lists obscure the actual ingredients; rather than egg whites, the plaintiff argues, RXBARs contain egg white protein powder, which a previous version of the packaging allegedly named. "[P]arents correctly wouldn't want to buy their young children foods which contained concentrated protein powders, for a variety of reasons related to normal adolescent and child development," the plaintiff argues. Further, the "fruit pieces incorporated into the Products are 'infused' (flavored)…
The U.S. Court of Appeals for the Ninth Circuit has affirmed summary judgment dismissing a putative class action alleging that Twinings North America Inc.'s teas contained fewer antioxidants than claimed on product labels, holding the plaintiff had failed to establish standing. Lanovaz v. Twinings N. Am. Inc., No. 16-16628 (9th Cir., entered June 6, 2018). The court focused on the plaintiff's statement that she would not purchase Twinings tea again even if the company changed the allegedly misleading labels. To establish standing, a plaintiff must show an imminent or actual threat of future harm, the court held, and the plaintiff’s “some day intention” of professed intent, “without any description of concrete plans, or indeed even any specification of when that some day will be—do[es] not support a finding of the ‘actual or imminent’ injury.”
U.S. Sen. Jerry Moran (R-Kan.) and Reps. Adam Kinzinger (R-Ill.) and Kurt Schrader (D-Ore.) have introduced the Accurate Labels Act, a proposed amendment to the Fair Packaging and Labeling Act that would require information about the "chemical composition of, and radiation emitted by" a food product to be based on the "best available science." According to a press release from Moran, the bill "ensures that consumers have access to accurate and easy-to-understand product information" by (i) "[e]stablishing science-based criteria for all additional state and local labeling requirements"; (ii) "[a]llowing state-mandated product information to be provided through smartphone-enabled 'smart labels' and on websites, where consumers can find up-to-date, relevant ingredients and warnings"; and (iii) "[e]nsuring that covered product information is risk-based." "Consumers deserve full transparency on the products they’re buying, no matter where they live or shop," Kinzinger said in a statement. "Often times, due to various state laws, items are…
The Florida attorney general has filed a lawsuit alleging Miami-based Icebox Cafe violated the state's Deceptive and Unfair Trade Practices Act by advertising its food and beverage items as locally sourced and "farm-to-table" while the ingredients were purchased from traditional commercial vendors. Office of the Attorney Gen. v. Icebox Cafe LC, No. __ (Fla. Cir. Ct., Miami-Dade Cty., filed May 4, 2018). The state alleges that Icebox Cafe "represented that it purchased products from specific Florida farms and suppliers when such was not the case." According to the complaint, Icebox Cafe's invoices indicate that most of its ingredients were purchased from commercial distributors while its advertising stated that its food was made from products purchased from a local farm and a local seafood distributor. The cafe also allegedly represented that its menu items contained wild salmon and same-day-caught fish, but its invoices did not show purchases of those items. Claiming deceptive representation,…
