The Ninth Circuit Court of Appeals has upheld the settlement of class actions alleging consumer fraud in ads portraying Nutella as a healthy breakfast food. In re Ferrero Litigation, No. 12-56469 (9th Cir., decided July 16, 2014) (unpublished). Three members of the certified statewide class objected to the settlement, which provided $550,000 to reimburse class members, required ad-campaign and product-labeling revisions and awarded $985,920 in attorney’s fees. The objectors claimed inadequate notice of the attorney’s fee request, lack of justification or explanation for the fee award and the district court’s failure to consider whether class counsel adequately represented the class. The court found no basis for the objections, noting in part that the district court properly applied the lodestar method to the attorney’s fee calculation and that no indicia of collusion were present. Issue 530
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A federal court in California has granted final approval to the nationwide class settlement of claims that the company which makes Muscle Milk® products deceived consumers by labeling them with the terms “Healthy, Sustained Energy” and “Healthy Fats.” Delacruz v. CytoSport, Inc., No. 11-3532 (N.D. Cal., order entered July 1, 2014). Additional information about the litigation and settlement appears in Issues 403, 436, 475, and 505 of this Update. Under the agreement, CytoSport will pay $1 million to eligible class members and cease using the allegedly deceptive terms on all newly printed packaging for certain products. The company may continue to use the designation “Healthy Fats” on the packaging for Muscle Milk® RTD and related products if they contain “fewer than 0.5 grams of saturated fat per serving, or CytoSport also includes the words ‘See nutrition information for saturated fat content’ in connection with the words ‘Healthy Fats.’” The court also awarded…
A California federal court has dismissed with prejudice a putative class action alleging that Hain Celestial Group Inc. mislabels its vegetable juice products as “organic” and “raw” one day before a proposed class action was filed against the company in New York federal court alleging similar claims about its baby foods and home care products. Alamilla, et al. v. Hain Celestial Group, Inc., No. 13–5595 (N.D. Cal., order entered July 2, 2014); Segedie v. The Hain Celestial Group, Inc., No. 14–5029 (S.D.N.Y., filed July 3, 2014). The California court dismissed the case based on two articles cited and incorporated into the complaint concluding that “pressurization has ‘little or no effects’ on nutritional and sensory quality aspects of foods,” which contradicted the plaintiffs’ argument that the treatment deprives the juice of nutritional value and that the company’s representations that it does not cook the juice are thus misleading. As a result of…
A California federal court has granted motions to amend the judgment in two cases previously dismissed to accord primary jurisdiction to the U.S. Food and Drug Administration (FDA), each alleging that the defendants mislabeled their food products as including “evaporated cane juice” (ECJ) rather than the more common term, sugar. Swearingen v. Santa Cruz Natural Inc., No. 13–4291 (U.S. Dist. Ct., N.D. Cal., order entered July 1, 2014); Figy v. Amy’s Kitchen Inc., No. 13–3816 (U.S. Dist. Ct., N.D. Cal., order entered July 7, 2014). The court cited “the unique circumstances,” “the potential prejudice to plaintiff,” and “the apparent lack of prejudice to the defendant” in amending its previous decisions to dismiss the cases without prejudice rather than stay them. The plaintiffs had argued that allowing the dismissal to remain rather than issuing a stay through the end of 2014 would likely result in the loss of a year of…
A pair of plaintiffs has filed putative class actions against Chobani LLC and Fage Dairy Processing SA in New York federal court claiming that the yogurt producers deceptively marketed yogurt as healthy despite its high sugar content. Stoltz v. Chobani LLC, No. 1:14-cv-3827 (E.D.N.Y., filed June 19, 2014); Stoltz v. Fage Dairy Processing SA, No. 1:14-cv-3826 (E.D.N.Y., filed June 19, 2014). The nearly identical suits allege that Chobani and Fage used a label intended “to create consumer confusion by causing purchasers to impute any meaning to the 0 percent that consumers wish, such as that the products lack sugar, carbohydrates, calories or any other content which a consumer may believe is unhealthy,” according to the complaint against Fage. The complaints include pictures of the defendants’ products and pictures of competitors’ products to illustrate the industry standard of including what nutrition levels the “0 percent” refers to, such as fat or…
In light of the large number of baby food products at issue and differing product labels used during the six-year class period in litigation alleging misbranding and deceptive labeling against Gerber Products Co., a federal court in California has determined that the class is not ascertainable, a flaw “fatal” to the plaintiff’s motion for class certification. Bruton v. Gerber Prods. Co., No. 12-2412 (N.D. Cal., decided June 23, 2014). Information about an earlier court ruling narrowing the claims in the case appears in Issue 511 of this Update. While the court rejected the company’s reliance on Third Circuit precedent that ruled a class is not ascertainable when purchaser records are unavailable, it did agree with uncontested evidence that consumers would be unable to reliably determine whether they are eligible to join the class. Sixty-nine products were at issue, and 66 of them were “labeled both with and without the challenged labels…
A consortium of more than 400 food manufacturers and retailers, the Consumer Goods Forum, has built on a 2011 pledge to clarify nutrition labeling and to advertise only those products fulfilling specific nutritional criteria to children younger than 12. The new pledge further defined the goals by setting deadlines; both reforms are to be completed by 2018, and by 2016, each member company will make its internal policies on nutrition and product formulation available to the public. The forum’s board of directors also established an independent scientific advisory council that will conduct a comprehensive survey of members’ progress toward the forum’s goals. See Consumer Goods Forum, June 18, 2014.
The sale of hot dogs described as “Kosher Style” by Five Guys Enterprises LLC may violate a Washington state law that describes what food products may be labeled kosher, according to a blogger for George Washington Law Professor Jonathan Turley’s blog. Darren Smith, a former deputy sheriff in Washington, writes that Five Guys advertises one of its products as a “Kosher Style” hot dog because, according to the company’s website, “the dogs are cooked on the same grill as our burgers,” even though “the way we cook them and serve them is not [kosher].” This label may violate Washington’s RCW 69.90.020(1), which states, “No person may knowingly sell or offer for sale any food product represented as ‘kosher’ or ‘kosher style’ when that person knows that the food product is not kosher and when the representation is likely to cause a prospective purchaser to believe that it is kosher,” with…
Monthly magazine Consumer Reports has started a campaign to rid food labels of the word “natural” following a survey that found significant confusion over the term’s meaning. The Consumer Reports National Research Center, which conducts the research published in the magazine, conducted a phone survey of 1,000 people and asked them about their understanding of the use of “natural” on a food label and what they think it should mean. The center reportedly found that “[a]bout two-thirds believe [“natural”] means a processed food has no artificial ingredients, pesticides, or genetically modified organisms, and more than 80 percent believe that it should mean those things.” U.S. Food and Drug Administration guidelines suggest that manufacturers can use the term if nothing artificial or synthetic has been added to their products, but the definitions are vague and flexible, Consumer Reports argues. “We want to clean up the green noise in the food label marketplace…
The Center for Science in the Public Interest (CSPI) has informed the CEO of Campbell Soup Co. that it will seek injunctive and monetary relief if the company continues to (i) “mislead consumers about the juice content, nutritional value, and healthfulness of its Products”; (ii) “represent that its V8 V-Fusion Refreshers contain no added sugars”; and (iii) mak[e] deceptive nutrient content claims on its V8 Splash Products in violation of United States Food and Drug Administration’s (‘FDA’) Fortification rule.” At issue are products from the V8 V-Fusion Refreshers (20-25% juice) variety of the V8 V-Fusion product line and the entire line of V8 Splash juice drink products, including V8 Splash (5-10% juice), Diet V8 Splash (8% juice) and V8 Splash Smoothies (10% juice). CSPI characterizes these products as “sugary juice cocktails.” According to CSPI, the marketing and labeling for these products are confusingly similar to V8 100 percent juice products…
