Tag Archives Missouri

A Missouri state senator has introduced legislation that would clarify when slack fill is allowable in food containers. The bill would prohibit slack fill from being deemed as misleading for eight reasons, including (i) protection of the contents, (ii) reasonable industry standards, (iii) a specific function provided by the package, (iv) value added by the packaging, such as a reusable container, and (v) required label messaging.

The Good Food Institute (GFI) and Tofurky Co. have filed a civil-rights action alleging that Missouri "criminalizes truthful speech by prohibiting 'misrepresenting' a product as 'meat' if that product is 'not derived from harvested production livestock or poultry.'" Turtle Island Foods v. Richardson, No. 18-4173 (W.D. Mo., filed August 27, 2018). The lawsuit responds to Missouri's agriculture bill, which was amended to include the contested language in June 2018 and took effect August 28. The complaint alleges that the statute seeks "to prevent plant-based and clean meat producers, including Tofurky, from accurately informing consumers what their products are: foods designed to fulfill the roles conventional meat has traditionally played in a meal." The plaintiffs argue that consumers are unlikely to be confused because "historically, the term 'meat' has had multiple meanings, including to describe the edible part of any food, such as a fruit or nut"; further, "clean meat" products…

A federal court in Missouri has denied class certification in a slack-fill action against Just Born Inc., ruling that the plaintiff was unable to represent one proposed class and that individual issues would predominate for the other two. White v. Just Born, Inc., 14-4025 (W.D. Mo., entered August 7, 2018). Alleging that boxes of Mike and Ikes and Hot Tamales were underfilled, the plaintiff sought certification of three classes: a Missouri Merchandising Practices Act (MMPA) class, an unjust enrichment (Restatement) class and an unjust enrichment (Appreciation) class. First, the court found that the Restatement class did not include Missouri residents, so the Missouri plaintiff could not serve as a representative of the potential class members. “In an attempt to account for variations in states’ unjust enrichment laws, [the plaintiff] seeks certification of two separate unjust enrichment classes,” the court held. “In doing so, however, [the plaintiff] defined himself out of one.”…

A Missouri federal court has dismissed with prejudice a putative class action alleging Dr Pepper Snapple Group Inc. mislabels Canada Dry Ginger Ale because it does not contain ginger. Webb v. Dr Pepper Snapple Grp. Inc., No. 17-0624 (W.D. Mo., entered June 21, 2018). The court approved a stipulated voluntary dismissal filed by the named plaintiff. In April 2018, the court denied the beverage maker’s motion to dismiss, finding the plaintiff had adequately pleaded all of the seven counts alleged.

The Missouri legislature has passed an agriculture bill that would prohibit companies from labeling lab-grown and plant-based products as "meat." The bill bans "misleading or deceptive practices" in the sale of meat, including "misrepresenting a product as meat that is not derived from harvested production livestock or poultry." Missouri Governor Eric Greitens must sign the bill by July 15, 2018. Similar measures have been debated at the federal level, and the U.S. Cattlemen's Association filed a petition in February 2018 urging the U.S. Department of Agriculture to establish beef labeling that would limit the use of "beef" and "meat" on products not derived from animals.

A Missouri federal court has denied Dr Pepper Snapple Group Inc.’s motion to dismiss a putative class action alleging Canada Dry Ginger Ale is falsely labeled because it does not contain ginger. Webb v. Dr Pepper Snapple Grp. Inc., No. 17-0624 (W.D. Mo., entered April 25, 2018). The plaintiff alleged that although the labeling, packaging and marketing of the product includes the statement “Made from Real Ginger,” independent laboratory testing found no detectable ginger in the beverage. The lawsuit echoes similar putative class actions filed in California. The Missouri court rejected all of Dr Pepper Snapple Group’s arguments, finding the plaintiff had adequately pleaded each of the seven counts alleged, including violation of the Missouri Merchandising Practices Act, fraud and intentional misrepresentation.

A federal court has denied a motion to dismiss a slack-fill complaint against Just Born, maker of Mike and Ike® and Hot Tamales® candies. White v. Just Born, No. 17-4025 (W.D. Mo., order entered July 21, 2017). The complaint alleged that consumers are likely to choose opaque, “theater-sized” boxes of the candies believing they are a good value despite allegedly containing up to 35 percent empty space. The court found that the plaintiff had pleaded sufficient facts to establish a claim under the Missouri Merchandising Practices Act, finding “a reasonable consumer could conclude that the size of a box suggests the amount of candy in it. . . . [t]he Court cannot conclude as a matter of law and at this stage of the litigation that the packaging is not misleading.” Moreover, Just Born’s argument that the packages’ labeling and disclosures of net weight, number of pieces of candy per…

A federal court has denied class certification to plaintiffs in multidistrict litigation involving false advertising claims for 5­-Hour Energy® drinks, finding they failed to allege that common issues predominate over individual ones, including a common definition of “energy.” In re 5-­Hour Energy Mktg. and Sales Practices Litig., No. 13-­2438 (C.D. Cal., order entered June 7, 2017). The plaintiffs could not establish the definition of “energy,” the court found, because they defined it as “caloric energy” based on U.S. Food and Drug Administration dietary­-supplement standards but did not show that consumers interpret “energy” the same way. In addition, plaintiffs in California, Missouri and New Mexico proposed a theory of liability based on underfilling, alleging that the product provided only 3.7 minutes of caloric energy instead of five hours, while plaintiffs in other states did not argue for the theory.   Issue 637

A consumer has filed a putative class action alleging Kellogg Co.’s Special K® Fruit & Yogurt cereal is misleadingly labeled with pictures of strawberries and blackberries despite that dried apples are listed as the only fruit contained in the product. George v. Kellogg Co., No. 16-1887 (E.D. Mo., removed to federal court December 1, 2016). Asserting that she paid a premium price for the product believing it to contain strawberries and blackberries, the plaintiff argues that the labeling violates the Federal Food, Drug, and Cosmetic Act and its labeling regulations. For an alleged violation of the Missouri Merchandising Practices Act and unjust enrichment, she seeks class certification, damages and attorney’s fees.   Issue 625

A Missouri appeals court has reversed a lower court’s dismissal of a lawsuit alleging Stonewall Kitchen, LLC misled consumers about its cupcake mix containing sodium acid pyrophosphate (SAPP), which the complaint contended precludes the company from marketing the mixes as “all natural.” Murphy v. Stonewall Kitchen, LLC, No. 104072 (Mo. Ct. App., E.D., order entered November 8, 2016). The trial court determined that because the ingredient list included SAPP, the plaintiff could not claim that Stonewall had failed to disclose its contents within the meaning of the Missouri Merchandising Practices Act (MMPA). Further, it found that the “all natural” description was inherently ambiguous with no clearly settled meaning. The appeals court disagreed, finding that the definition of “all natural” is a question of fact requiring further investigation during discovery. “Furthermore, we expressly reject the notion that the ‘ingredient list’ defense asserted by Stonewall Kitchen defeats [the plaintiff’s] claim as a…

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