A California federal court has granted Blue Diamond’s motion to decertify a statewide class of consumers who alleged that the company’s almond milk product labels were misleading because they cited “evaporated cane juice” on the ingredient list rather than the alleged common name for the substance, sugar. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., order entered December 15, 2014). The court had preliminarily certified the class in May 2014 on the condition that the plaintiff could provide a damages model that limited recovery to those injured by the alleged mislabeling. Upon reviewing the proposed model, the court found fundamental flaws with the method of determining damages “because Dr. Capps’ model is incapable of isolating the damages attributable to Defendant’s alleged wrongdoing. Instead, Dr. Capps’ methodology measures the ‘combined effect’ of Blue Diamond’s brand value and Blue Diamond’s use of ‘evaporated cane juice’ and/or ‘All Natural’ on the prices…
Tag Archives milk
Researchers with Seoul National University have published a study allegedly finding that people who drank soy milk from cans containing bisphenol A (BPA) exhibited a statistically significant increase in blood pressure. Sanghyuk Bae and Yun-Chul Hong, “Exposure to Bisphenol A From Drinking Canned Beverage Increases Blood Pressure,” Hypertension, December 2014. Involving 60 adults older than age 60, the study tracked blood pressure and urinary BPA levels over the course of three visits, during which participants consumed soy milk from either two glass bottles, two cans or one glass bottle and one can. Not only did urinary BPA increase by approximately 1600 percent in volunteers who consumed canned soy milk as opposed to soy milk from glass bottles, but systolic blood pressure also increased by approximately 4.5 mm Hg. “Because these results confirm findings from other studies, doctors and patients, particularly those with high blood pressure or heart disease, should be…
Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (W.D. Tex., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed November 7, 2014). The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because…
The Center for Science in the Public Interest (CSPI) has submitted a request to the U.S. Food and Drug Administration (FDA) under the Freedom of Information Act for “the data collected by the Center for Veterinary Medicine under its Raw Milk Drug Residue Survey.” According to CSPI, FDA conducted the survey in 2012 “because excess and sometimes illegal drugs are more frequently found in animals from dairy farms at slaughter plants than animals coming from other sources.” CSPI’s review of drug testing reports in 2011 purportedly revealed that “animals coming from dairy farms accounted for 67 percent of reported drug residue violations at slaughter” and that, in some cases, “the reported residues were for drugs that are not approved for use in cattle.” While FDA informed consumer groups that it would make the raw data available when its report is released, it has yet to release the survey results. CSPI attorney…
The Ninth Circuit Court of Appeals has denied a request for interlocutory review of a class certification ruling in an action alleging that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and the company hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Blue Diamond Growers v. Werdebaugh, No. 14-80084 (9th Cir., order entered August 22, 2014). Additional details about the suit appear in Issue 525 of this Update. Blue Diamond challenged the district court’s ruling that the class was ascertainable, arguing that the decision “exacerbates a split of authority amongst district courts in this Circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases. The Third Circuit Court of Appeals—the only circuit to squarely resolve the issue—holds that sales records or other reliable evidence of product purchases must be available for a…
Following similar decisions from courts across the country, two California federal courts have delayed final rulings in cases accusing Kashi and Trader Joe’s of mislabeling their products by using the term “evaporated cane juice” (ECJ) in their ingredient lists rather than simply “sugar,” which the plaintiffs allege is the same substance. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered August 7, 2014); Saubers v. Kashi Co., No. 13-899 (S.D. Cal., order entered August 11, 2014). In the proposed class action against Kashi, the plaintiffs accused the Kellogg-owned company of “misbranding” more than 75 different food products by listing ECJ instead of sugar on its labels to conceal its inclusion in the foods. The court found that the plaintiffs’ claims relied “heavily, if not entirely, on the premise that the [U.S. Food and Drug Administration (FDA)] has concluded that ‘evaporated cane juice’ is not the common or usual name…
The U.K. Advertising Standards Authority (ASA) has dismissed complaints challenging print and TV advertisements that tout Tesco-brand milk as fairly priced and responsibly sourced. In particular, the complaints alleged that (i) “the image of cows in an open field did not accurately represent how the milk was produced or the conditions in which the cows lived” and (ii) only a small proportion of Tesco’s milk was sourced through the Tesco Sustainable Dairy Group (TSDG). According to ASA, Tesco countered that all of its core milk suppliers must meet industry Red Tractor standards as well as Tesco’s own Livestock Code of Practice, which focuses on food safety, environmental indicators and “welfare outcome measures such as lameness, mastitis, fertility, and animal health.” The retailer also reiterated that core farmers with TSDG “supplied approximately 80% of Tesco’s total milk requirements over the course of the year,” while seasonal farmers provided additional milk during…
While the Dairy Farmers of America (DFA) and affiliated Dairy Marketing Services have agreed to pay $50 million to settle class claims that they conspired to monopolize the market for raw milk in the Northeast, a federal court in Vermont has denied preliminary approval of the proposed settlement without prejudice. Allen v. DFA, Inc., No. 09-0230 (U.S. Dist. Ct., D. Vt., order entered July 9, 2014). Details about the litigation appear in Issue 323 of this Update. The court pointed to a number of flaws in the draft class notice, including that it released the defendants and a number of related entities and extended beyond the legal claims in the lawsuit without making this clear to class members. The basis for its ruling, however, was that some class members apparently plan to object to the settlement, but no information about their objections was provided in the expedited motion for preliminary approval…
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 federal magistrate in Florida has denied the plaintiffs’ request in multidistrict litigation challenging marketing claims that DHA Omega-3-fortified milk supports brain health to reconsider an earlier order excluding the testimony of their expert. In re Horizon Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., MDL No. 2324 (S.D. Fla., order entered June 17, 2014). Details about the magistrate’s ruling excluding the plaintiffs’ expert appear in Issue 522 of this Update. The magistrate rejected the plaintiffs’ arguments for their failure to raise them when the motion to exclude the evidence was before him and determined that an intervening U.S. Food and Drug Administration final nutrient content rule on DHA is not new evidence and does not address the ground on which the magistrate struck the expert—his failure to show how the studies on which he relied could be extrapolated to cover the broad class of product purchasers. Issue…
