Fifth Generation, Inc., maker of Tito’s® Handmade Vodka, has filed an opposition to a motion to consolidate eight proposed class actions alleging the vodka is mislabeled as “handmade” because it is manufactured with an automated process. In re Tito’s Handmade Vodka Mktg. & Sales Practices Litig., MDL No. 2634 (J.P.M.L., motion filed April 28, 2015). The company argues that the eight lawsuits are in seven jurisdictions and include claims based on the laws of several different states. Further, several of its motions to dismiss are already fully briefed, Fifth Generation says. If the panel determines that multi-district litigation (MDL) is appropriate, the company argues that the Western District of Texas or the Northern District of Florida would be venues better suited for the litigation than the proposed Southern District of California because the average duration of cases in California is longer than in the former two jurisdictions. Issue 563
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A California federal court has denied Boulder Brands, Inc.’s motion to dismiss a lawsuit alleging that the company misrepresents the cholesterol-blocking effect of the plant sterols in its Smart Balance® butter products because the amount of plant sterols is “not enough to generate a ‘clinically meaningful cholesterol blocking effect.’” Mitchell v. Boulder Brands, Inc., No. 12-1862 (S.D. Cal., order entered April 16, 2015). The court declined to reconsider its earlier decision that “the products’ labels could plausibly be read as implying a ‘clinically meaningful cholesterol blocking benefit’ and that this implied representation is ‘specific, measurable, and falsifiable.’” The expert report upon which the court has based its decision stated that a minimum of 800 milligrams of plant sterols—eight times the content in one serving of the Smart Balance® product—would be the minimum to meaningfully block cholesterol. Issue 563
A Vermont federal court has denied a preliminary injunction that would have prevented from taking effect the nation’s first state law requiring the labeling of food products manufactured with genetically modified organisms (GMOs). Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., order entered April 27, 2015). Several food industry groups challenged the statute’s provisions requiring GMO labeling and preventing foods with GMO ingredients from bearing a “natural” label. The court first examined the industry groups’ claim that the statute violates the dormant Commerce Clause of the U.S. Constitution. It agreed with the groups’ argument that the statute seems to prohibit the use of “natural” in signage and advertising “regardless of where or how those activities take place,” and accordingly refused to dismiss Vermont’s motion to dismiss that aspect of the Commerce Clause claim. The rest of the Commerce Clause claims, based on the argument that the statute would require…
A California federal court has granted in part and dismissed in part a motion to dismiss a putative consumer class action against The Hain Celestial Group alleging that the company mislabels its Sunflower Dream Drink as “all natural” despite containing artificial or synthetic ingredients, including xanthan gum and folic acid. Anderson v. The Hain Celestial Grp., Inc., No. 14-3895 (N.D. Cal., San Jose Div., order entered April 8, 2015). Hain challenged the plaintiff’s standing to sue for the alleged mislabeling of “substantially similar” products she did not personally purchase as well as standing for injunctive relief because she did not indicate that she would purchase Sunflower Dream Drink again. The court disagreed with the first argument, finding that the products the plaintiff did not purchase are substantially similar because they feature the same “all natural” representation and contain artificial, synthetic or extensively processed ingredients. Discussing the argument against standing for an…
After examining the sodium content of packaged food products sold throughout the United States in 2009, Centers for Disease Control and Prevention (CDC) researchers have reported that “fewer than half of selected food products met Food and Drug Administration [FDA] sodium-per-serving conditions for labeling as ‘healthy.’” Alexandra Lee, et al., “Sodium Content in Packaged Foods by Census Division in the United States, 2009,” Preventing Chronic Disease: Public Health Research, Practice and Policy, April 2015. Using the 2009 Nielsen ScanTrak data to identify all branded products sold in grocery stores with annual sales of $2 million or more, the study focused on products sold in three U.S. Census divisions—South Atlantic, East North Central and Pacific—representing approximately 50 percent of the U.S. population. These three regions also “reflect places with high (South Atlantic), medium (East North Central) and low (Pacific) prevalence of hypertension.” The authors then identified “products in the 10 food categories that…
Vermont Attorney General William Sorrell has reportedly adopted a final rule implementing the state’s new law requiring the labeling of foods produced partially or entirely with genetic engineering (GE). “We are pleased at the amount of public input we received during the rulemaking process – from industry and consumers – and are glad that, with the formal adoption of this rule, we are giving ample time for food manufacturers and retailers to prepare for the law to take effect in just over fourteen months,” Sorrell was quoted as saying. Among other things, Consumer Protection Rule 121 provides specific details about how the GE label must appear on processed food, exemptions from the labeling requirement, and enforcement and penalties. The rule takes effect on July 1, 2016. See Office of the Attorney General Press Release, April 20, 2015. Issue 562
A Dutchman has reportedly been sentenced to jail after authorities determined that his companies sold at least 336 metric tons of horsemeat labeled as beef in 2013. Willy Selten will serve 2.5 years for forging invoices, labels and declarations and using forged documents to sell meat. The court judgment apparently determined that Selten “contributed to a negative image for the Dutch meat industry and damaged the sector’s interests” because he sold the horsemeat-beef mixture to foreign firms. During his trial, Selten admitted that he was negligent with his administration, but he argued that he is “not the big horsemeat swindler they’re all looking for.” Since 2013, Selten declared bankruptcy and faces damages claims of €11 million. Details about the sentencing of two U.K. men related to falsifying documents and failing to keep adequate records appear in Issue 560 of this Update. Issue 561
A study examining the relationship between sugar-sweetened beverage (SSB) consumption and liver health among premenopausal women has reportedly found that habitual, moderate intake “may elicit hepatic lipogenesis.” Maya Shimony, et al., “The relationship between sugar-sweetened beverages and liver enzymes among healthy premenopausal women: a prospective cohort study,” European Journal of Nutrition, March 2015. Relying on data from a prospective cohort of 259 healthy women, researchers with the National Institutes of Health and George Washington University’s Milken Institute School of Public Health measured serum levels of alanine and aspartate aminotransferases (ALT and AST), biomarkers used to assess overall liver health. The study claims that for every additional cup of SSB consumed and every 10-gram increase in added sugar and total fructose per day, “log ALT increased by 0.079 U/L (95 % CI 0.022, 0.137), 0.012 U/L (95 % CI 0.002, 0.022), and 0.031 (0.012, 0.050), respectively, and log AST increased by…
The parents of an 11-year-old boy who died in 2013 have filed a wrongful death lawsuit against Quorn Foods, Inc. and several distributors alleging that the mycoprotein in a Quorn® Turk’y Burger caused their son to go into anaphylactic shock, which resulted in his death. Bengco v. Quorn Foods, Inc., No. BC576522 (Cal. Super. Ct., C.D. Los Angeles Cty., filed March 24, 2015). The complaint calls Quorn’s product “highly processed mold,” to which the boy had a severe allergy. According to the complaint, the product label of Quorn’s Turk’y Burger lists “Mycoprotein (47%)” as the first ingredient, and the description explains that “’myco’ is Greek for ‘fungi.’” The description also explains that “[t]here are believed to be over 600,000 varieties of fungi in the world, many of which are among the most sought after foods like varieties of mushrooms, truffles, and morels” but the product is not, the complaint notes, a…
A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
