A federal court in California has granted in part the motion for summary judgment filed by Bumble Bee Foods in a putative class action alleging that certain labeling claims either deceived consumers or violate state and federal law. Ogden v. Bumble Bee Foods, LLC, No. 12 1828 (N.D. Cal., order entered January 2, 2014). Information about the complaint is included in Issue 436 of this Update. The court agreed with Bumble Bee that the plaintiff failed to raise a genuine issue of material fact regarding her standing to pursue consumer-fraud claims based on the company’s purported statements about vitamin A and iron, because those statements were made on the nutrition information panel, which the plaintiff “does not claim to have read in connection with purchasing the product.” Other similar statements appeared on the company’s Website, and “Ogden concedes that she did not visit this website prior to purchasing the Sardines Mediterranean…
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Maine Gov. Paul LePage (R) has signed a bill (L.D. 718) that will require labeling for foods containing genetically modified (GM) ingredients if at least five other states or a state with a population of at least 20 million passes similar legislation. Restaurants will be exempt from the disclosure requirements, and alcoholic beverages and medical foods would not be required to carry the required labels. Those products subject to the law’s provisions would be required to contain “a conspicuous disclosure that states ‘Produced with Genetic Engineering,’” and such products could not described or identified as “natural.” Issue 509
The European Commission (EC) has published a report titled “Origin labelling for meat used as an ingredient: consumers’ attitude, feasibility of possible scenarios and impacts” that provides an overview of the potential consequences of mandatory origin labeling of meat used as an ingredient in food. Based on an independent study completed in July 2013, the report explores three scenarios: (i) maintaining current voluntary origin labeling; (ii) introducing mandatory labeling for EU/non-EU or EU/specific third country indication; and (iii) introducing mandatory labeling indicating the specific EU member state or the specific third country. Among other things, the findings revealed that (i) overall there is “strong” consumer interest in origin labeling; (ii) a considerable difference exists among European Union (EU) member states on consumer preferences and understanding of origin information as well as on the levels of motivation and reasons for wishing to have such information; and (iii) consumer interest for origin…
In a putative class action against Amy’s Kitchen, a federal court in California has dismissed with leave to amend claims that the company has mislabeled its products by listing “evaporated cane juice” (ECJ) or “organic evaporated cane juice” as an ingredient. Figy v. Amy’s Kitchen, Inc., No. 13-3816 (N.D. Cal., order entered November 25, 2013). The company argued that the plaintiff “failed to allege that he relied on the products’ ingredient labeling” and thus lacked standing under the state’s Unfair Competition Law (UCL). According to the plaintiff, “reliance on a label misrepresentation is not a necessary element of a claim under the unlawful prong of the UCL.” Interpreting and applying In re Tobacco II Cases, 46 Cal. 4th 298 (2009), and Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), the court held, “because the statutes plaintiff relies on prohibit specific types of misrepresentation on food labels—the listing of…
Rep. Steve Israel (D-N.Y.) has reintroduced a bill (H.R. 3612) that would require clearer labeling of trans fat on food packaging. The move follows the U.S. Food and Drug Administration’s recent preliminary determination that partially hydrogenated oils, a major source of artificial trans fat in processed foods, are not deemed generally recognized as safe (GRAS) for use in food. Current regulations, which permit food companies to label products that contain partially hydrogenated oils as having 0 grams of trans fat if the value per serving is 0.4 grams or less, have been criticized by Israel and others, who point out that consumers can unknowingly exceed the recommended consumption of trans fat by eating multiple servings of a product containing 0.4 grams in a day. Israel’s legislation would amend this regulation to require manufacturers to indicate that a product contains less than 0.5 grams trans fat by using an asterisk in the “amount per serving”…
A District of Columbia court has determined that a plaintiff who purchased a bottle of Pompeian-brand extra-virgin olive oil (EVOO) after learning that testing done in 2010 and 2011 concluded that certain EVOO brands did not satisfy U.S. and international EVOO standards has standing to bring certain consumer-fraud claims despite purportedly believing that the product was defective when purchased. Mostofi v. Mohtaram, Inc., No. 2011 CA 163 B (D.C. Super. Ct., order entered November 12, 2013). Thus the court rejected the defendant’s “manufactured” or “self-inflicted” injury standing argument. According to the court, “The dispositive consideration is that Plaintiff is a consumer who engaged in a consumer transaction.” The court also disagreed with the defendant that the plaintiff lacked expert testimony or that his sampling testing was insufficiently reliable to support two claims of statutory consumer fraud, finding they were matters of fact to be determined by a jury. The court…
A California resident has filed a putative nationwide class action against Pacific Foods of Oregon, Inc., alleging that the company falsely labels its Hemp NonDairy Beverage® products as “all natural” despite the presence of processed and artificial ingredients and misbrands them by listing as an ingredient “evaporated cane juice.” Perera v. Pac. Foods of Or., Inc., No. 13-1788 (C.D. Cal., filed November 13, 2013). Plaintiff Sadisha Perera claims that she purchased one specific beverage relying on the prominent “all natural” labeling, but seeks to represent class members who purchased a number of other hemp non-dairy products that are purportedly substantially similar. According to the plaintiff, she would not have purchased the products if she had known that ingredients, such as calcium phosphate, disodium phosphate, xanthan gum, and certain vitamins, listed on the product in smaller print, were non-natural. She claims that she did not get the benefit of the bargain…
A federal court in California has denied the motion to dismiss putative class claims that Jamba Juice falsely labels its frozen smoothie kits as “all natural,” finding that while the plaintiffs lack standing to assert claims related to products they did not buy, “they may seek to represent a class of people who have purchased those products, as long as all plaintiffs, named and absent, have standing in their own right, and as long as the prerequisites to class certification are satisfied.” Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered November 18, 2013). The court will address whether the named plaintiffs may represent the proposed class at class certification and ordered them to file their certification motion by February 3, 2014.
California residents have filed a putative class action against Whole Foods Market, alleging that the company misleads consumers by labeling certain snack products as “All Natural” because they contain “the synthetic chemical ingredient Sodium Acid Pyrophosphate, among other synthetic ingredients (e.g., Maltodextrin).” Garrison v. Whole Foods Mkt., Inc., No. 13-5222 (N.D. Cal., filed November 8, 2013). Seeking to certify statewide and nationwide classes, the plaintiffs claim that they relied on the truthfulness of the “product label’s promise that these Products were ‘All Natural,’” paid a price premium over products that are not all natural, “ingested a substance that was other than what was represented,” and “ingested a product that did not bring the health benefits Defendant promised.” The products at issue include mini muffins, soft-baked cookies and an array of gluten-free products, including apple pie, cheddar biscuits, corn bread, cookies, and cupcakes. While the plaintiffs mention various claims that the…
According to Wall Street Journal reporter Mike Esterl, products with the “natural” or “all natural” label represented $40 billion in retail sales in the United States in the preceding 12 months and market researchers have found that more than 50 percent of Americans seek the “all natural” label when they shop for food. Still, food and beverage companies have begun “quietly removing” these words from their product labels under pressure from dozens of lawsuits filed during the past two years challenging the terminology as false and deceptive. Esterl notes that the litigation is complicated due to the Food and Drug Administration’s (FDA’s) decision not to define the terms. He observes that courts have, in recent months, stayed several of these lawsuits and referred questions to FDA about whether the “natural” designation can be used on products containing genetically modified (GM) ingredients. Details about the latest referral by a federal court…
