A federal court in California has dismissed putative nationwide class claims against The Hain Celestial Group alleging that the company’s food and beverage product labels and website mislead consumers because they (i) list the ingredient “Evaporated Cane Juice” or “Organic Evaporated Cane Sugar Juice,” (ii) are falsely labeled “All Natural” or “Only Natural,” and (iii) falsely claim to have “No Trans Fat” or other nutrient content claims. Smedt v. The Hain Celestial Group, Inc., No. 12-3029 (N.D. Cal., San Jose Div., order entered August 16, 2013). The court dismissed the statutory warranty claims with prejudice on the grounds that the food products are consumables and not covered under the state and federal laws and because food and beverage labels “do not constitute express warranties against a product defect.” The court dismissed the fraud-related claims with leave to amend within 15 days, finding that the amended complaint failed to “unambiguously specify the…
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A federal court in California has dismissed a putative statewide class action alleging that Tetley USA misleads consumers by making “antioxidant, nutrient content, and health claims” for certain of its tea products; the statutory warranty claims were dismissed with prejudice, and the remaining claims were dismissed with leave to amend the complaint to comply with the plausibility pleading standard. De Keczer v. Tetley USA, Inc., No. 12-2409 (N.D. Cal., order entered August 16, 2013). According to the court, while the plaintiff acknowledged that the products at issue were consumables under the Song-Beverly Consumer Warranty Act, he “appears to argue that the product labels constitute express warranties and that the products in question therefore fall under the provisions of section 1793.35, which provides for the enforcement of express warranties on consumables. The Court rejects this argument because food labels, like the ones at issue, do not constitute express warranties against a…
A federal court in California has dismissed several of the claims in a putative nationwide class action alleging that Bromley Tea Co. makes unlawful and deceptive health-related claims on packaging labels and on its website for the company’s green and black teas. Clancy v. The Bromley Tea Co., No. 12-3003 (N.D. Cal., order entered August 9, 2013). The court rejected the defendant’s challenge to the plaintiff’s standing to assert claims as to products he had not purchased or statements he did not see before buying the products he did purchase. According to the court, “The named plaintiff has standing to assert claims relative to the products he purchased. He does not claim to have standing to assert claims related to other products. What he does claim is that he may be a potential representative of a class of people who have such standing. He may or may not be able…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has extended the comment period for a proposed rule that would require “mechanically tenderized” labeling for raw or partially cooked needle- or blade-tenderized beef products, “including beef products injected with marinade or solution.” According to FSIS, the rule would also require the labels of mechanically tenderized beef products destined for consumers, hotels, restaurants, or similar establishments to include “validated cooking instructions” to ensure safe handling and reduce the risk of foodborne illness. Acting at the request of two trade associations, the agency will now accept comments on the new labeling scheme until October 8, 2013. Additional details about the proposed rule appear in Issue 486 of this Update. See Federal Register, August 9, 2013.
A federal court in Washington has dismissed without prejudice a number of claims in a putative class action alleging that the producer and seller of a vitamin water product misled consumers by failing to disclose that the product contains caffeine or its relative amount and falsely represents that the product is a “natural tonic” and contains “natural caffeine.” Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered August 1, 2013). While the court determined that the plaintiff had standing by rejecting Costco’s contention that the labeling on one product unit was not visible through the packaging encasing the variety packs in which it is sold, it found that federal law preempts claims that the defendants were required to disclose the presence of caffeine or state its relative amount in the drink. Among the claims that the court dismissed for insufficient pleading were (i) violation of the state’s consumer…
A federal court in California has granted motions to certify California classes of consumers in two separate consumer-fraud lawsuits involving the “all natural” claims on products made by Bear Naked, Inc. and the Kashi Co. Thurston v. Bear Naked, Inc., No. 11-2890, Astiana v. Kashi Co., No. 11-1967 (S.D. Cal., orders entered July 30, 2013). Details about the latter suit, a consolidated matter, appear under the plaintiff’s name Bates in Issue 408 of this Update. The court agreed with Bear Naked that the named plaintiffs failed to sufficiently show that “natural” has a uniform definition among class members, that a sufficient number of class members would have relied to their detriment on the representation or that the company’s “representation of natural in light of the presence of the challenged ingredients would be considered to be a material falsehood by class members.” Still, the court determined that the plaintiff made a sufficient showing of…
A federal court in New York has determined that while plaintiffs alleging they were sold olive-residue oil, or Pomace, instead of the “100% Pure Olive Oil” appearing on the labels of The Gourmet Factory’s Capatriti-brand products could not maintain a cause of action under the Magnuson-Moss Warranty Act, their claims did exceed the $5 million threshold for maintenance of the action in federal court under the Class Action Fairness Act (CAFA). Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered July 26, 2013). The plaintiffs apparently based their amount-in-controversy allegation on documents that the defendant submitted in parallel litigation brought by an olive oil trade association. Details about that suit appear in Issues 470, 482 and 483 of this Update. Thus the court rebuffed the defendant’s attempt to fault the plaintiffs for failing to conduct an independent investigation into the amount-in-controversy before filing the complaint,…
A federal magistrate has recommended that General Mills’ motion to dismiss a putative consumer fraud class action be denied without prejudice and that, under the primary jurisdiction doctrine, the suit be stayed “pending action by the FDA [Food and Drug Administration] with respect to the referral made by Judge Rogers in Cox v. Gruma. Van Atta v. General Mills, Inc., No. 12-2815 (D. Colo., recommendation entered July 18, 2013). At issue is the company’s claim that its granola bars are “100% Natural” when they allegedly contain genetically modified organisms (GMOs). Finding that the food-labeling issue falls within FDA’s regulatory authority and that the agency “has not issued a rule which requires products containing GMOs to be labeled as such, nor has the FDA issued a rule regarding whether products labeled ‘natural’ may contain GMOs,” the magistrate found invocation of the primary jurisdiction doctrine appropriate. In this regard, the magistrate stated,…
The U.S. Food and Drug Administration (FDA) has issued a final rule defining the term “gluten-free” for voluntary food labeling. Among other things, the rule defines “gluten-free” to mean that a food does not contain (i) an ingredient that is a gluten-containing grain (e.g., spelt wheat); (ii) an ingredient derived from a gluten-containing grain that has not been processed to remove gluten (e.g., wheat flour); or (iii) an ingredient derived from a gluten-containing grain that has been processed to remove gluten (e.g., wheat starch). In addition, a food must contain less than 20 parts per million of gluten to use the term “gluten-free” on its label. According to FDA, a food that bears the claim “no gluten,” “free of gluten” or “without gluten” on its label and fails to meet the requirements for a “gluten-free” claim will be deemed misbranded. The rule will take effect 30 days after its publication in…
Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (S.D. Fla., filed July 12, 2013). According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension…
