A California-based seafood company has reportedly been sentenced in federal court for knowingly selling mislabeled frozen fish fillets. United States v. Seafood Solutions, Inc., No. 11-297 (C.D. Cal., sentencing February 6, 2012). Seafood Solutions, Inc. agreed to plead guilty to the charge in July 2011, as part of a federal investigation into companies that had been selling Asian catfish imports under other labels to avoid anti-dumping duties. Under the terms of the agreement, the company was fined $700,000 and will pay an additional $300,000 to the National Fish and Wildlife Foundation. Two California men also pleaded guilty in connection with the scam and are apparently scheduled for sentencing on February 12, 2012. See Law360, February 7, 2012.
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The plaintiff in a purported class action asserting that Herr Foods Inc. mislabels its packaged snacks as “natural” has filed a motion to disqualify defense counsel, alleging the attorney repeatedly made “extortionate threats” and committed professional misconduct. Whitaker v. Herr Foods, Inc., No. 16-2017 (E.D. Penn., motion filed December 14, 2016). The plaintiff’s motion follows Herr Foods’ motion for summary judgment, which asserted that the plaintiff could not possibly have purchased the products he claimed and that he is “a wholly inadequate lead plaintiff” because of “his faulty memory,” “his lengthy history of felony convictions involving theft and dishonesty and his potential mental health problems.” The plaintiff’s motion for disqualification alleges the defense attorney told the plaintiff that Herr Foods directed him to file for sanctions and refer the plaintiff to the district attorney’s office for an attempted criminal extortion investigation. “If you would like to talk about an agreement…
A consumer has filed a projected class action against Tradewinds Beverage Co. alleging the company’s iced tea products are misleadingly labeled as natural despite containing caramel color. Martin v. Tradewinds Beverage Co., No. 16-9249 (C.D. Cal., filed December 14, 2016). The plaintiff argues that she regularly paid a premium for Tradewinds Iced Tea products believing them to be made of all-natural ingredients. For alleged violations of California’s consumer-protection statutes, she seeks a corrective advertising campaign, destruction of all misleading advertising materials, restitution, damages and attorney’s fees. Issue 626
Citing the need to help curb food loss and waste, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has announced new guidance that encourages food manufacturers and retailers to use the phrase “Best if Used by” on date labeling. Infant formula is the only product currently subject to mandatory date labeling under federal law. Date labeling for other food and beverage products is voluntary, and the variety of “Sell by” and “Use by” phrasing used to describe quality dates has apparently led to the early disposal of products that are still safe to consume. See FSIS News Release, December 14, 2016. Issue 626
A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees. Issue 625
A consumer has filed a putative class action against Buffalo Trace Distillery, Inc., Old Charter Distillery Co. and Sazerac Co. alleging the companies misrepresent Old Charter Bourbon as aged for eight years before entering the market. Parker v. Buffalo Trace Distillery, Inc., No. 16-8986 (S.D.N.Y., filed November 18, 2016). The complaint argues that Old Charter was aged for eight years before a switch in manufacturing practices in 2014, and the bottle's labels were adjusted to remove the eight-year claim. Where the label once said "Aged 8 years," the label was changed to merely display an 8; in another spot on the label, the text reads, "gently matured for eight seasons." The plaintiff alleges negligent misrepresentation, fraud, breach of warranty, unjust enrichment and violations of New York and federal law. Issue 624
Two consumers have filed a projected class action against Arizona Canning Co. alleging that the image of a bowl full of beans on its Sun Vista products misleads consumers into believing the can is filled completely with beans rather than filled with some beans and a large amount of water. Beckman v. Ariz. Canning Co., No. 16-2792 (S.D. Cal., removed November 14, 2016). The complaint asserts that the “picturesque” label image depicts “a bowl full of plump and hearty beans with glimmer of shine, and little to no water,” but when the can is opened, it reveals “the repulsive sight of bean water” and “an inappropriately large amount of water and a small amount of beans.” The complaint admits that a reasonable consumer “would expect to find some water within the container,” but one plaintiff’s “home investigation” apparently found that a 29-ounce can of pinto beans contained 13 ounces of…
A consumer has filed a projected class action against Krispy Kreme Doughnuts, Inc., alleging the company’s blueberry, maple and raspberry products are not made with the ingredients in their fruit-based names. Saidian v. Krispy Kreme Doughnuts, Inc., No. 16-8338 (C.D. Cal., filed November 9, 2016). The complaint highlights health benefits apparently linked to raspberries, blueberries, maple syrup and maple sugar, asserting that Krispy Kreme charged a premium for its products to capitalize on those perceived health benefits while using imitation versions of the ingredients. The plaintiff also distinguishes the blueberry, raspberry and maple products from Krispy Kreme’s lemon, strawberry and cinnamon apple products, because the latter group does contain its advertised ingredients, leading to further consumer confusion. For allegations of fraud, misrepresentation and violations of California statutes, the plaintiff seeks class certification, an injunction, damages and attorney’s fees. Issue 622
A California federal court has denied Vigo Importing Co.’s motion to dismiss a lawsuit alleging the company mislabels its products as containing octopus when they are actually composed of jumbo squid. Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., order entered October 26, 2016). Vigo Importing sought to dismiss the claim on jurisdictional grounds, arguing that based on its sales figures, the amount in controversy could not possibly meet the $5 million threshold required by the Class Action Fairness Act to allow a federal court to consider the case. The court disagreed, noting that the sales price was only part of the calculation; the potential damages determination requires information on the cost of the products as well as the value of the product if composed of jumbo squid. Details on the complaint appear in Issue 602 of this Update. Issue 621
A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…
