The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
Tag Archives labeling
The U.S. Food and Drug Administration (FDA) will reconsider how “healthy” may be used on food packaging following the evaluation of a citizen petition filed by Kind LLC. FDA previously challenged Kind’s use of “healthy” on its nut bars, which contain more fat than permitted due to the inclusion of nuts, and Kind changed its packaging accordingly but filed a petition for reconsideration of the issue. The existing guidelines were created during the 1990s and reflect accepted standards of that time, including a preference for foods low in fat without regard to the nature of the fat. FDA has now allowed Kind to use “healthy and tasty” on its packaging “only in text clearly presented as its corporate philosophy, where it isn’t represented as a nutrient content claim, and does not appear on the same display panel as nutrient content claims or nutrition information.” Further details about the dispute appear…
The U.S. Food and Drug Administration’s (FDA’s) Center for Food Safety and Applied Nutrition has published a report finding that 77 percent of surveyed adults use the Nutrition Facts label at least some of the time when buying a food product. Intended to help the agency regulate food and dietary supplement labeling, the 11th edition of the FDA Health and Diet Survey relies on data from 2,480 participants interviewed by telephone or cellphone about their use of nutrition labels and understanding of nutrition claims, purchasing practices and general attitudes toward nutrition and health issues. The results highlight consumer attitudes about salt reduction, with almost all respondents agreeing “the nation eats more salt than we should.” Of these, 50 percent believe individuals are most effective in curbing their own salt consumption, while 25 percent believe the responsibility lies with food manufacturers and retailers, 5 percent with restaurants, and 5 percent with…
The U.S. Food and Drug Administration (FDA) has issued final guidance to help chain establishments with 20 or more locations (e.g., grocery and convenience stores, quick-service and fast-food restaurants, pizza delivery outlets, and movie theaters) comply with menu labeling requirements for standard menu items and self-service offerings under the Federal Food, Drug, and Cosmetic Act. According to FDA, the final guidance provides “additional examples and new or revised questions and answers on topics such as covered establishments, alcoholic beverages, catered events, mobile vendors, grab-and-go items, and recordkeeping requirements.” Enforcement of the menu labeling final rule will begin on May 5, 2017. See Federal Register, May 5, 2016. Issue 603
A consumer has filed a proposed class action against Vigo Importing Co. alleging its octopus product is actually jumbo squid, “which is significantly cheaper and of a lower quality than octopus.” Fonseca v. Vigo Importing Co., No. 16-2055 (N.D. Cal., San Jose Div., filed April 19, 2016). The complaint details each animal’s taxonomy within the animal kingdom and describes the current populations of each—octopus populations “have dwindled around the world due to over-fishing,” while “jumbo squid populations have been thriving” because of the squid’s “ability to adapt to changing ocean conditions caused by global warming.” As a result, “the cost of octopus has risen dramatically compared to the cost of squid,” and “due to similarities in texture, squid can easily be substituted for octopus without the consumer being able to tell the difference particularly when sold in a sauce like garlic sauce or marinara sauce.” The plaintiff argues that independent…
A California federal court has dismissed a lawsuit alleging Kraft Heinz Food Co. mislabels its Heinz sauces as manufactured in the United States despite containing ingredients sourced outside the country, including turmeric, tamarind extract and jalapenos. Alaei v. Kraft Heinz Food Co., No 15-2961 (S.D. Cal., order entered April 22). The complaint failed to meet the heightened pleading standards associated with fraud claims, the court found, in part because she did not allege that the Heinz 57® sauce she bought contained any specific ingredients of foreign origin. Further, she could not have standing to assert misrepresentation claims against products she did not purchase without arguing the other sauces were substantially similar to Heinz 57®. Accordingly, the court granted Kraft’s motion to dismiss but allowed the plaintiff leave to amend. Additional information on the complaint appears in Issue 589 of this Update. Issue 602
An Oregon federal court has dismissed a lawsuit alleging Gerber’s Graduates® Puffs is mislabeled because its packaging displays fruits and vegetables not contained in the product. Henry v. Gerber Prods. Co., No. 15-2201 (D. Ore., order entered April 18, 2016). The court first denied the plaintiff’s request to remand the case to state court, then turned to Gerber’s motion to dismiss the claims based on preemption by the federal Food, Drug, and Cosmetic Act. Gerber argued that U.S. Food and Drug Administration (FDA) regulations allow the company to provide visual depictions of the product’s “‛characterizing flavor,’ even if the product does not actually contain any of the depicted fruit, or indeed any fruit at all.” The court agreed, finding that the law is “clear,” even if the “wisdom of the FDA’s regulations on this topic is a different question for a different day.” The court dismissed the case but granted…
A putative class action against Melitta USA Inc. alleges the company’s coffee product packaging fails to distinguish between “natural and/or artificial flavor” per federal regulations. Decerbo v. Melitta USA Inc., No. 16-0850 (M.D. Fla., filed April 11, 2016). The plaintiff argues that under U.S. Food and Drug Administration rules, food manufacturers must “accurately identify or describe, in as simple and direct terms as possible, the basic nature of the food and its characterizing properties or ingredients,” including whether a characterizing flavor is natural or artificial. However, “‘Hazelnut Crème’ is not flavored with hazelnuts, there is no vanilla in ‘French Vanilla,’ and ‘Pumpkin Spice’ flavor contains neither nutmeg nor cinnamon, or pumpkin or any customary pumpkin spice either, as these Products’ labels would explicitly lead a consumer to conclude,” the complaint argues. The plaintiff further notes that other coffee-product manufacturers “have responsibly decided to correctly label their products,” purportedly giving the…
A California federal court has dismissed a lawsuit alleging that Diageo PLC misrepresents Red Stripe® beer as brewed in Jamaica, finding “no reasonable consumer would be misled into thinking that Red Stripe is made in Jamaica with Jamaican ingredients based on the wording of the packaging and labeling.” Dumas v. Diageo PLC, No. 15-1681 (S.D. Cal., order entered April 6, 2016). Details about the complaint appear in Issue 574 of this Update. Bottle trays for six and 12-packs of Red Stripe® include, as the court explained, “the language ‘Jamaican Style Lager and ‘The Taste of Jamaica,’” the Diageo-Guinness USA logo and a disclaimer on the bottom of the packaging that states, “Brewed and bottled by Red Stripe Beer Company Latrobe, PA.” Citing a Second Circuit opinion finding that the description of a knife as a “Swiss Army knife” does not imply it was made in Switzerland, the court found that the “mere…
A California federal court has granted The Kroger Co.’s motion to dismiss a lawsuit alleging the company’s breadcrumbs product includes partially hydrogenated oil, which contains trans fat, despite labeling the product as “0g Trans Fat.” Hawkins v. Kroger Co., No. 15-2320 (S.D. Cal., order entered March 17, 2016). The court found that the mislabeling claims failed for two reasons. First, a challenge to a “0g Trans Fat” labeling claim is preempted, the court said, because U.S. Food and Drug Administration regulations require that foods with less than one-half of a gram of trans fat be labeled as “0g.” Second, the plaintiff failed to prove actual reliance on the allegedly deceptive statements, the court found, rejecting her argument that she “is a busy person and cannot reasonably inspect every ingredient of every food that she purchases” despite having bought the bread crumbs six times per year for 15 years but only noticing…
