A federal court in California has dismissed with prejudice the breach of warranty claims made by a putative class as to purportedly “misbranded food products” sold by 7-Eleven, but dismissed the remaining consumer fraud claims without prejudice to allow the plaintiff to amend the complaint to meet the stringent pleading requirements for fraud-based allegations. Bishop v. 7-Eleven, Inc., No. 12-2621 (N.D. Cal., order entered August 5, 2013). While the plaintiff defined “misbranded food products” as pertaining to potato chips, pretzels and other foods labeled “0 grams Trans Fat,” “No Cholesterol,” “All Natural,” “Fresh to Go,” “guaranteed fresh,” or “Fresh,” as well as products “sold in oversized slack filled container,” the court determined that he failed to “provide a clear and particular account of the allegedly fraudulent, deceptive, misrepresentative, or otherwise unlawful statements” and failed to “unambiguously specify the particular products that have violated particular labeling requirements, the allegedly unlawful representations that…
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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 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,…
A Hawaii resident has filed a putative nationwide class action against Cargill, Inc., alleging that the company falsely advertises its Truvia® sweetener product as “natural” when it is actually made from ingredients that are “either synthetic or harshly chemically processed.” Howerton v. Cargill, Inc., No. 13-0336 (D. Haw., filed July 8, 2013). According to the complaint, the company markets the product with “natural imagery such as the leaves of the stevia plant,” yet “the stevia-derived ingredient, Reb A, is not the natural crude preparation of stevia, but rather is a highly chemically processed and purified form of the stevia leaf extract,” and Reb A “comprises only 1% of Truvia.” The plaintiff alleges that “the main ingredient, erythritol, which Cargill also purports to be a natural ingredient derived through natural processes, is not made like it is in nature, but rather is synthetically made. Cargill describes the process of obtaining stevia…
A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
Naked Juice Co. has agreed to settle putative class claims that it falsely advertised some of its juice and smoothie products as “all natural” and not genetically modified (GMO); while denying the allegations, the company will establish a $9 million settlement fund. Pappas v. Naked Juice Co. of Glendora, Inc., No. 11-8276 (C.D. Cal., motion for preliminary approval filed July 2, 2013). Members of the putative nationwide class will each be eligible under the proposed agreement to recover a maximum of $45 dollars. The agreement will also require Naked Juice to establish a product verification program, hire or assign a quality control manager to oversee the independent testing process for the company’s product line, establish a database to allow the electronic tracking and verification of product ingredients, and modify future labeling, advertising and marketing to cease using “All Natural” and related statements.
A federal court in California has issued an order preliminarily certifying a nationwide class for settlement purposes and approved the class settlement in a case alleging that Barbara’s Bakery misled consumers by labeling its products as “all natural” with “no artificial additives,” “no artificial preservatives,” or “no artificial flavors,” when they contained genetically modified (GM), artificial or synthetic ingredients. Trammell v. Barbara’s Bakery, Inc., No. 12-2664 (N.D. Cal., order filed June 26, 2013). Under the proposed terms, the company would create a $4 million non-revertible fund to pay class member claims, an incentive award for the named plaintiff, attorney’s fees, and costs of notice and administration. Class members would able to recover up to $100 for the purchase of products including cereals, cereal bars, cheese puffs, fig bars, granola bars, Snackanimal® animal cookies, organic mini-cookies, snack mixes, and crackers. The settlement would also require the company to modify the labeling and…
A California resident has filed a putative statewide class action alleging that Pepperidge Farm falsely advertised and labeled its Goldfish® crackers as “Natural” despite using genetically modified (GM), synthetic or artificial ingredients to make them. Koehler v. Pepperidge Farm, Inc., No. 13-2644 (N.D. Cal., filed June 10, 2013). Among other matters, the plaintiff alleges that the company changed the product’s packaging and labeling to remove the “Natural” statement and characterizes this as “an implied admission that the Products were not natural at all material times hereto when the Plaintiff and putative Class Members purchased the Products that claimed to be ‘Natural’ and no longer make said claim.” According to the complaint, the company’s cheddar-flavored products “contain genetically modified soy in the form of soybean oil, as well as the following ingredients, which, upon information and belief, were each synthetically produced: thiamine mononitrate (‘vitamin B1’), riboflavin (‘vitamin B2’), folic acid and…
A federal judge in California has notified the parties to a consumer-fraud action against the company that makes Mission® tortilla chips of her inclination to stay the litigation for six months and refer to the Food and Drug Administration (FDA) the question “whether products containing GMO [genetically modified organisms] or bioengineered ingredients may properly be labeled ‘Natural’ or ‘All Natural.’” Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., notice filed June 7, 2013). The plaintiffs have opposed the tentative stay order, arguing that a prompt regulatory determination is unlikely given FDA’s past inaction on the matter. They reportedly cited a recent Florida decision denying a soup company’s motion to dismiss similar litigation on preemption grounds because FDA does not regulate “Natural” or “All Natural” food labeling claims. The court, however, cited a Ninth Circuit ruling deferring to FDA’s regulatory authority so that the agency’s “considered judgments” would not be undermined…
A federal court in Arkansas has ruled that it has jurisdiction, pursuant to the U.S. Supreme Court’s seminal standing decision under the Class Action Fairness Act (CAFA), Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), to adjudicate the putative class claims filed by a woman who alleges that Frito-Lay deceives consumers by labeling its Tostitos® and SunChips® products as “All Natural” because they contain genetically modified corn and hexane-extracted soybean oil. Deaton v. Frito-Lay N. Am., Inc., No. 12-1029 (W.D. Ark., order entered June 5, 2013). At issue was whether the defendants had submitted sufficient evidence to show that the amount in controversy exceeded CAFA’s $5 million jurisdictional minimum. The plaintiff had stipulated that she would not seek more than $5 million to keep the lawsuit in state court, but conceded that her stipulation could not prevent removal under the Knowles decision. The court ruled that the…
