A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
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A California appeals court has affirmed the dismissal with prejudice of a putative class action alleging that Kroger Corp. misled consumers by failing to comply with federal and state law requirements for labeling its Challenge® spreadable butter products. Simpson v. The Kroger Corp., No. B242405 (Cal. App. Ct., decided September 25, 2013). The court found that the labeling requirements of the state Milk and Milk Products Act of 1947 were not identical to federal labeling requirements, and thus claims based on the Act were preempted. And while the court found that the plaintiff’s mislabeling claims under the state Sherman Food, Drug and Cosmetic Law were not preempted, it ruled that the trial court did not abuse its discretion in denying leave to amend the complaint, because “as a matter of law, plaintiff has failed to demonstrate that a reasonable consumer would be misled by the labels on the products.” Noting…
A recent study asserts that the energy and sodium content of main entrées served in U.S. chain restaurants has remained unchanged over a one-year period, despite the enactment of federal regulations requiring menu labeling. Helen Wu & Roland Sturm, “Changes in the Energy and Sodium Content of Main Entrées in US Chain Restaurants from 2010 to 2011,” Journal of the Academy of Nutrition and Dietetics, October 2013. Relying on data collected from chain restaurant Websites between spring 2010 and spring 2011, the study’s authors noted that “mean energy and sodium did not change significantly overall, although mean sodium was 70 mg lower across all restaurants in added vs removed menu items at the 75th percentile.” They also reported that even though fast-food chains reduced the mean energy in children’s menu entrées by 40 kcal, the adult-sized dishes with reduced sodium levels “far exceeded recommended limits,” while not all significant changes…
The Natural Resources Defense Council (NRDC) and the Harvard Food Law and Policy Clinic have co-authored a September 2013 report claiming that the date label used on food products “is a key factor” in unnecessary food waste. Titled The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America, the report focuses on the lack of federal standards for date labels such as “use by,” “best before,” “sell by,” and “enjoy by,” arguing that the variability in state and local rules sows confusion among consumers, undermines the system’s goal of providing accurate indicators of freshness and harms both manufactures and retailers “by creating increased compliance burdens and food waste.” To combat these problems, the report recommends that stakeholders “standardize and clarify the food date labeling system across the United States” by establishing “a reliable, coherent, and uniform consumer-facing dating system” that clearly differentiates between “quality-based” and “safety-based” date…
A federal court in California has denied the motion to dismiss filed in a putative nationwide class action alleging that Blue Diamond Growers misled consumers by labeling its almond milk products and snack foods as “all natural” and representing that they contain “evaporated cane juice,” (ECJ) in violation of federal labeling requirements incorporated into state law. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., San Jose Div., order entered October 2, 2013). The court determined that the claims were not preempted by federal law or the primary jurisdiction doctrine, the plaintiff had standing to pursue claims regarding substantially similar products that he did not purchase, the claims were pleaded with sufficient particularity, and the defendant’s conflict-of-laws challenge was premature.
A federal court in California has dismissed with limited leave to amend the second amended complaint filed on behalf of a putative nationwide class against Welch Foods, alleging that the company’s juice, beverage, spread, and jelly labels and Website violate California labeling law by including “no sugar added,” “all natural,” “no artificial flavors,” and “high in antioxidants” statements. Park v. Welch Foods, Inc., No. 12-6449 (N.D. Cal., order entered September 26, 2013). Agreeing that the complaint sounded in fraud and must comply with the heightened pleading standard of Federal Rule of Civil Procedure 9, the court noted that “Welch is after the who, what, where, when, and how surrounding the circumstances in which Plaintiffs were misled.” The company apparently argued that “portions of the complaint are generously and blindly appropriated from similar complaints filed in this district,” and that a 15-page limit would be appropriate. Still, “Welch wants to know specifically…
A California resident has filed a putative class action on behalf of statewide and nationwide classes alleging that Safeway, Inc. labels and promotes its Open Nature waffle products as “100% Natural” while using the synthetic chemical preservative, alternatively referred to as sodium acid pyrophosphate and disodium dihydrogen pyrophosphate, as an ingredient. Richards v. Safeway, Inc., No. 13-4317 (N.D. Cal., filed September 18, 2013). According to the plaintiff, the chemical “has various applications—from its use in leather treatment to remove iron stains on hides during processing, to stabilizing hydrogen peroxide solutions against reduction, to facilitating hair removal in hog slaughter, to feather removal from birds in poultry slaughter, to use in petroleum production.” According to the plaintiff, the ingredient is not listed on the front of the package with the other ingredients. Claiming that he relied on the company’s “100% Natural” claims in purchasing products for which he paid a premium, the…
U.S. Rep. Rosa DeLauro (D-Conn.), Rep. Frank Pallone (D-N.J.) and Sen. Richard Blumenthal (D-Conn.) have introduced legislation (H.R. 3147) seeking to “modernize” food labeling by updating the Nutrition Facts panel and ingredient list requirements, addressing front-of package (FOP) labeling, and eliminating misleading health claims. Titled the Food Labeling Modernization Act of 2013, the bill would require the Department of Health and Human Services (HHS) “to issue comprehensive guidance for industry clarifying the scientific support needed to prevent false or misleading information for structure/function claims and giving the Secretary the legal authority to compel companies to turn over their substantiation documents.” It would also direct HHS to (i) establish “a single, standard [FOP] labeling system in a timely manner for all food products required to bear nutrition labeling,” (ii) update the definition of the term “healthy” according to the Dietary Guidelines for Americans, (iii) standardize the term “natural,” (iv) require products…
A second amended complaint has been filed in a putative nationwide class action alleging that The Hain Celestial Group’s food and beverage product labels render their products misbranded and further mislead consumers because they use the terms “No Trans Fat,” “Evaporated Cane Juice” or “All Natural” in violation of state law. Smedt v. The Hain Celestial Group, Inc., No. 12-3029 (N.D. Cal., filed August 30, 2013). Details about the court ruling dismissing the claims with leave to amend appear in Issue 495 of this Update. The plaintiff has omitted any claims that the company’s website misled consumers and has otherwise attempted to address the court’s concerns about ambiguous fraud allegations in her initial pleadings.
A multidistrict litigation (MDL) court in New York has granted in part the motion to dismiss filed in a putative class action alleging that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural” when they contain genetically modified organisms (GMOs). In re Frito-Lay N. Am., Inc. All Natural Litig., MDL No. 2413 (E.D.N.Y., order entered August 29, 2013). The court dismissed PepsiCo, Inc. from the litigation without prejudice, finding that the complaint failed to allege sufficient facts to support its liability. Among other matters, the court refused to dismiss the suit on the basis of (i) the primary jurisdiction doctrine (noting that the issues do not require specialized knowledge to resolve and that “the FDA [Food and Drug Administration] is unlikely to respond in a timely manner to any referral from this Court”), (ii) preemption (finding that FDA’s…
