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
Tag Archives Missouri
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…
A Missouri federal court has granted a motion to dismiss a lawsuit against Source Naturals, Inc., maker of Life Force® multivitamins, alleging the company misrepresented the amount of vitamins and nutrients in the product on the label. Dougherty v. Source Naturals, Inc., No. 15-0574 (E.D. Mo., order entered December 8, 2015). The plaintiff argued her tests of the multivitamin showed that the nutrient content claims on the product packaging were false, amounting to a violation of the Missouri Merchandising Practices Act. The court disagreed, finding the plaintiff's testing did not meet the methodology mandated by the U.S. Food and Drug Administration (FDA). "Because Plaintiff has failed to allege she followed FDA testing protocols," the court found, "her state law claims that rely on a different methodology to demonstrate such labeling violations are inconsistent with the [federal Food, Drug, and Cosmetic Act] and are thus preempted." Accordingly, the court granted the…
A consumer has filed a proposed class action against Whole Foods Market Group Inc. alleging that the company’s Gluten Free All-Natural Nutmeal Raisin Cookies list evaporated cane juice (ECJ) as an ingredient to mislead consumers about the amount of sugar contained in the product. Bryant v. Whole Foods Mkt. Grp. Inc., No. 15-1001 (E.D. Mo., removed to federal court June 25, 2015). The complaint, originally filed in Missouri state court in April, asserts that ECJ should be listed as sugar under the U.S. Food and Drug Administration’s (FDA’s) rule that food labels use the most common or usual name of an ingredient. According to the April complaint, the plaintiff seeks class certification and damages. The lawsuit joins a wave of litigation against food manufacturers presenting the same argument. Several courts have dismissed the cases without prejudice or granted stays after FDA indicated that it would publish updated guidance about ECJ.…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
A federal court in Missouri has denied the motion to dismiss filed by a food-safety company responsible for auditing conditions at the Jensen Farms cantaloupe facility some six weeks before the U.S. Food and Drug Administration inspected the farm and found the Listeria strains associated with a nationwide outbreak that allegedly sickened the plaintiff. West v. Frontera Produce Ltd., No. 13-0943 (W.D. Mo., decided November 7, 2014). Primus Group, Inc. had argued that it owed no duty to the plaintiff, but the court disagreed, citing Missouri case law, which is consistent with the Restatement (Second) of Torts, Section 324A, allowing liability for third persons who render services that should be recognized “as necessary for the protection of a third person or his things.” According to the court, the plaintiff sufficiently stated a cause of action against the defendant, “given that Primus assumed a duty pursuant to contract and the performance of that duty…
After a three-week trial, a jury has reportedly cleared Anheuser-Busch of sex discrimination in a suit brought by former executive Francine Katz, who had alleged that she was paid less than her male counterparts because of her gender. Katz v. Anheuser-Busch Inc., No. 922-CC09513 (St. Louis Circ. Ct., verdict rendered May 16, 2014). Katz worked at Anheuser-Busch as vice president of communications and consumer affairs from 2002 to 2008, when she left following InBev NV’s November 2008 acquisition of the company. During the acquisition process, Katz learned that her compensation was lower than the pay received by her male colleagues on the strategy committee, and she filed a suit alleging violations of the Missouri Human Rights Act in 2009. Following the jury’s decision, Katz told the media that she hoped she had helped to draw attention to the issue of gender bias in compensation. See St. Louis Post-Dispatch, May 17,…
A federal court in Missouri has determined that a man who alleges employment discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) on the basis of his severe obesity has sufficiently stated his claims and may proceed with his action. Whittaker v. America’s Car-Mart, Inc., No. 13-0108 (D. Mo., order entered April 24, 2014). The plaintiff allegedly began working for the defendant in August 2005 and was discharged from his general manager position in November 2012, purportedly because of his disability. He claims that the defendant regarded him as having a physical impairment under the ADA and “as being substantially limited in a major life activity, walking, as a result of his obesity.” To support its argument that the alleged disability “is not an actual disability under the ADA unless it is related to an underlying physiological disorder or condition and that plaintiff fails to allege that his…
The Eighth Circuit Court of Appeals has found constitutional Missouri’s four-tier alcohol distribution system which includes a residency requirement for wholesalers, which comprise the third tier. S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control, No. 12-2502 (8th Cir., decided September 25, 2013). According to the court, the decision required it to examine the “current state of the relationship between the dormant Commerce Clause and the Twenty-First Amendment.” The former forbids discrimination against out-ofstate residents, while the latter gives states “certain prerogatives particular to the regulation of alcohol.” Missouri law requires those seeking a wholesaler license to be incorporated under the state’s laws, with all officers and directors “qualified legal voters and taxpaying citizens of the county . . . in which they reside” and “bona fide residents” of Missouri for at least three years. Resident shareholders must own at least 60 percent of all the…
