A California federal court has refused to certify a class of consumers alleging that R.C. Bigelow Inc. misled them by over-representing the amount of antioxidants contained in its green tea. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered March 29, 2016). The court previously refused to allow the plaintiff to seek financial records to calculate damages. Additional details appear in Issue 575 of this Update. In its certification analysis, the court found fault with the plaintiff’s three suggested damages models: (i) a restitution calculation, (ii) statutory damages or (iii) a nominal alternative. The plaintiff argued that the restitution calculation model should amount to payments of the full purchase price of the product because the tea is allegedly “legally worthless” for failing to meet U.S. Food and Drug Administration requirements on antioxidant nutrient claims. The court refused to find that consumers received no benefit from drinking the tea, “in…
Tag Archives labeling
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and the U.S. Food and Drug Administration are holding an April 13, 2016, public meeting in College Park, Maryland, to discuss U.S. draft positions for consideration at the 43rd Session of the Codex Committee on Labeling in Foods (CCFL) in Ottawa, Canada, on May 9-13. CCFL is charged with drafting food labeling provisions and addressing issues related to the advertisement of food with particular claims or misleading descriptions. Agenda items for the April 13 meeting include discussion papers focused on Internet food sales and the labeling of non-retail containers; proposed revisions to guidelines for use of the term “Halal”; and date marking. See Federal Register, February 26, 2016. Issue 598
The U.S. Food and Drug Administration (FDA) has announced that two rules requiring calorie information to be listed on menus and menu boards in chain restaurants will not be enforced December 1, 2016, as initially planned, but will instead be delayed until one year after final guidance is issued. The announcement credits the omnibus appropriations bill enacted December 18, 2015, as cause for the delay. The agency is currently reviewing comments about related draft guidance issued in September 2015. See FDA Statement, March 9, 2016. Issue 597
A California resident has filed a putative class action alleging Quaker Oats Co. mislabels its instant oatmeal as containing maple syrup despite containing no syrup or maple sugar. Eisenlord v. Quaker Oats Co., No. 16-1442 (C.D. Cal., filed March 1, 2016). Citing a letter from the Vermont Maple Sugar Makers’ Association to the U.S. Food and Drug Administration, the complaint asserts that adding maple sugar to a product can allow a company to charge a premium price. The plaintiff argues that he relied on the name of the product and a prominent image of maple syrup on the packaging to believe that the oatmeal contained maple syrup, and had he known “that the product did not contain maple syrup or maple sugar as an ingredient, he would not have purchased it.” For allegations of fraudulent inducement and violations of California’s consumer-protection statute, the plaintiff seeks class certification, damages, an injunction…
Two cheese companies and an executive from a third company have pleaded guilty to charges relating to the manufacture and sale of adulterated and misbranded Parmesan cheese products. The companies, Universal Cheese & Drying, Inc. and International Packing, LLC, were charged with conspiracy to introduce misbranded cheese products into interstate commerce and to commit money laundering, while Michelle Myrter, an executive at Castle Cheese Co., pleaded guilty to a misdemeanor count of aiding and abetting the introduction of misbranded cheese. “The Department of Justice prosecutes people and companies who introduce adulterated or misbranded food into interstate commerce,” U.S. Attorney David Hickton said in a February 26, 2016, press release. “In this case, the fraud was perpetrated on consumers who purchased Parmesan and Romano cheeses that were inferior to what they believed they were buying.” Additional details about the Castle case and the ensuing media attention about the cellulose content in…
The day before the rule was set to take effect on March 1, 2016, a New York state appeals court reportedly granted an emergency stay on enforcement of a municipal regulation requiring chain restaurants to feature salt-warning icons on menus next to items containing 2,300 milligrams or more of sodium. A justice in the Appellate Division of the New York Supreme Court granted the emergency measure, and a panel from that court will next decide whether to grant a preliminary injunction on enforcement followed by a full appeal of the case. See Bloomberg Business, February 29, 2016. Issue 596
A consumer has filed a lawsuit against Kraft Heinz Foods Co. alleging the company sells its grated Parmesan as “100% Grated Parmesan Cheese” despite containing “significant amounts of adulterants and fillers,” including cellulose, or “wood pulp.” Lewin v. Kraft Heinz Foods Co., No. 16-0823 (N.D. Cal., filed February 18, 2016). The lawsuit comes in the wake of a Bloomberg Business article investigating the content of several leading companies’ grated-Parmesan products. The plaintiff alleges that the 3.8 percent of the product composed of cellulose precludes Kraft from labeling its cheese as “100% Grated Parmesan.” For allegations of misrepresentation, fraud and violations of California’s consumer-protection statutes, the plaintiff seeks class certification, damages and an injunction. For its investigation, Bloomberg hired a laboratory to test grated-Parmesan products for levels of cellulose, an additive often described as “wood pulp” approved for use in food in amounts up to 4 percent. The tests apparently found higher…
Cumberland Packing Corp. and a group of consumers have reached a settlement agreement in a lawsuit alleging that Cumberland Packing Corp. misrepresents its Stevia in the Raw® sweetener products as all natural despite containing genetically modified organisms. Frohberg v. Cumberland Packing Corp., No. 14-0748 (E.D.N.Y., motion filed February 22, 2016). Under the agreement, Cumberland will pay up to $1,547,000 to reimburse class members with $2.00—or 40 percent of the average purchase price—per purchase of Stevia in the Raw®, to a maximum of $16 per person. In addition, Cumberland will remove “100% Natural” or “All Natural” label claims. Issue 595
A New York state court has reportedly refused to grant the National Restaurant Association’s request for a preliminary injunction to stall the enforcement of New York City’s new requirement that chain restaurants label menu items containing 2,300 mg of salt or more, which is set to take effect March 1, 2016. Nat’l Restaurant Assoc. v. New York City Dept. of Health, No. 654024/2015 (N.Y. Super. Ct., New York Cty., order entered February 24, 2016). During the hearing, the court reportedly distinguished the rule from a ban on the ingredient, noting, “It’s not a ban. It’s information. It’s a warning.” Under the rule, chain restaurants must display a logo of a triangle with the image of a salt shaker next to applicable menu items or risk a $200 fine for each infraction. See Bloomberg, February 24, 2016. Issue 595
A Texas federal court has dismissed multidistrict litigation (MDL) alleging that Whole Foods Market Inc. lists incorrect amounts of sugar on its yogurt labels, concluding the Consumer Reports data relied on by the plaintiffs did not meet federal standards. In re Whole Foods Mkt. Inc. Greek Yogurt Mktg. & Sales Practices Litig., MDL No. 2588 (W.D. Tex., Austin Div., order entered February 16, 2016). The consumers claimed Whole Foods’ store-brand yogurt contains 11.4 grams of sugar per serving, while the listed sugar content is 2 grams. Details about some of the 11 consolidated lawsuits appear in Issues 533 and 534 of this Update. Whole Foods argued that the consumers’ claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) because the scientific testing techniques used by Consumer Reports failed to comply with the testing methodology determined by the U.S. Food and Drug Administration. The court agreed, noting that…
