A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
Tag Archives labeling
A California federal court has denied a proposed settlement in a consumer class action alleging Annie Chun's® soup products, made by CJ America Inc., either contain monosodium glutamate or ingredients that produce the substance during the cooking process despite being labeled as "No MSG Added." Petersen v. CJ America Inc., No. 14-2570 (S.D. Cal., order entered December 16, 2015). The court rejected the bid to certify the class for purposes of the settlement, finding the plaintiff had shown that the South Korean company was subject to jurisdiction in California but not necessarily other states, thus precluding the approval of a nationwide class. The parties reached the proposed settlement in November 2015. Additional details appear in Issue 584 of this Update. Issue 588
The National Advertising Division (NAD), an arm of the advertising industry's self-regulation system, has concluded Saputo Cheese, USA, Inc. can support its claims that its string cheese is "natural" and "low-moisture part-skim mozzarella cheese" despite challenger Lactalis American Group’s argument that Saputo’s products contain artificial phosphate and fillers. Lactalis argued Saputo's products do not comply with the U.S. Food and Drug Administration's (FDA's) standard of identity for "low-moisture part-skim mozzarella cheese" and the products could not be "natural" as their packaging asserts because of the addition of phosphate. Saputo argued phosphate occurs naturally in cheese and the existence of phosphate did not necessarily prove the company added synthetic phosphate. In its determination, NAD acknowledged that it did not have the authority to deem something "misbranded" under FDA's regulations but noted that the products seemed to fit the standard of "low-moisture part-skim mozzarella cheese" because they contain 30 to 45 percent…
The U.S. Food and Drug Administration (FDA) has reportedly reached a deal with Hampton Creek, maker of eggless spread Just Mayo®, allowing the company to keep the name of its product but requiring changes to its packaging. Just Mayo® labels will now feature larger words touting its features, including "egg-free" and "spread and dressing," and a definition of "just" as "guided by reason, justice, and fairness." The product has been the target of litigation in recent years, including a lawsuit by competitor Unilever and a putative class action, because of the alleged misrepresentation of the product as mayonnaise despite its noncompliance with FDA’s standard of identity for mayo, which requires the inclusion of eggs. Hampton Creek was also allegedly the target of a smear campaign by the American Egg Board. Additional details appear in Issue 578 of this Update. Issue 588
A Missouri federal court has granted a motion to dismiss a lawsuit against Source Naturals, Inc., maker of Life Force® multivitamins, alleging the company misrepresented the amount of vitamins and nutrients in the product on the label. Dougherty v. Source Naturals, Inc., No. 15-0574 (E.D. Mo., order entered December 8, 2015). The plaintiff argued her tests of the multivitamin showed that the nutrient content claims on the product packaging were false, amounting to a violation of the Missouri Merchandising Practices Act. The court disagreed, finding the plaintiff's testing did not meet the methodology mandated by the U.S. Food and Drug Administration (FDA). "Because Plaintiff has failed to allege she followed FDA testing protocols," the court found, "her state law claims that rely on a different methodology to demonstrate such labeling violations are inconsistent with the [federal Food, Drug, and Cosmetic Act] and are thus preempted." Accordingly, the court granted the…
A California federal court has dismissed a lawsuit against Trader Joe’s Co. alleging the retailer’s soy milk is mislabeled because it does not contain cow’s milk, which the plaintiffs argued amounts to a violation of the federal Food, Drug, and Cosmetic Act and California’s consumer protection statute. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered December 1, 2015). “Often in food labeling cases,” the court noted, “courts jump straight to the question of whether a plaintiff may state a claim under California’s Unfair Competition Law. But there is a threshold question.” The court explained that questions related to food labeling must be considered in the context of the federal Food, Drug, and Cosmetic Act because “if the alleged conduct would not violate the federal statute, it doesn’t matter whether the plaintiff could pursue a state law claim based on that conduct. If a food label does not…
The California Supreme Court has held that a consumer may sue Herb Thyme Farms, Inc. alleging its herbs are improperly labeled as “organic,” dismissing the farm’s contention that the Organic Foods Production Act of 1990 blocks such claims. Quesada v. Herb Thyme Farms, Inc., No. S216305 (Cal., order entered December 3, 2015). Details about previous court rulings concluding that the federal law preempted the action appear in Issues 347 and 509 of this Update. The court found that, contrary to the farm’s arguments, the federal statute does not prohibit consumers from seeking redress. “[T]he complaint here alleges Herb Thyme has engaged in fraud by intentionally labeling conventionally grown herbs as organic, thereby pocketing the additional premiums organic produce commands. The purposes and objectives underlying the Organic Foods Act do not suggest such suits are an obstacle; to the contrary, a core reason for the act was to create a clear…
Kind LLC has filed a citizen petition to the U.S. Food and Drug Administration (FDA) challenging regulations governing the use of “healthy” on food labeling, arguing that specific nutrient levels in a product do not dictate whether it is “healthy.” The petition asks FDA to reevaluate its nutrient content claim regulations for consistency with current federal dietary recommendations and issue rules accordingly. Kind filed the petition months after FDA issued the company a warning letter—and the company was targeted by a consumer class action on the same subject—about the use of “healthy” on Kind snack bars, which contain more than 1 gram of saturated fat due to their nut content. Additional details about the letter and subsequent lawsuits appear in Issues 562 and 575 of this Update. Issue 586
An Ohio federal court has dismissed fraud and consumer-protection claims against Fifth Dimension, maker of Tito’s Handmade Vodka®, in a putative class action alleging the beverage company misrepresents the process of making its vodka by calling the product “handmade.” Terlesky v. Fifth Dimension, No. 15-0374 (S.D. Ohio, order entered November 17, 2015). The court analyzed each claim, first finding that the plaintiff did not have standing to sue under the Ohio Deceptive Trade Practices Act. Turning to the Ohio Consumer Sales Protection Act, the court determined that plaintiffs bringing class claims must show the alleged violation was declared to be deceptive by the attorney general or a court before the transaction. Finding no such facts in the case, the court dismissed the class claim but allowed the individual claim to proceed. The court also allowed the plaintiff’s promissory estoppel claim to continue. Turning then to the negligent misrepresentation claim, the…
In conjunction with its decision to approve the first genetically engineered (GE) animal for human consumption, the U.S. Food and Drug Administration (FDA) has published final labeling guidance for foods derived from GE crops and draft labeling guidance for GE salmon. Titled “Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Engineered Plants,” the final guidance document seeks to assist “food and feed manufacturers that wish to voluntarily label their plant-derived food products or ingredients (for humans or for animals) as having been made with or without bioengineering.” In addition, the agency’s draft labeling guidance—“Voluntary Labeling Indicating Whether Food Has or Has Not Been Derived From Genetically Engineered Atlantic Salmon”—describes the preferred labeling terms for products marketed as containing or avoiding transgenic salmon. Emphasizing that such labeling should be “truthful and not misleading,” the agency recommends that manufacturers wishing to identify their products as not derived from GE ingredients use…
