New Jersey lawmakers have introduced a bill (A2990) that seeks to amend legislation requiring retail food establishments to provide calorie information for food and beverages. Proposed by Assemblywomen Nancy Pinken (D-Middlesex) and Linda Stender (D-Middlesex, Somerset and Union), the bill would require entertainment facilities to provide calorie information for food and beverage items offered for sale, subject to the same requirements that currently apply to chain restaurants. The bill defines “entertainment facility” as “any privately or publicly owned or operated facility that is used primarily for sports contests, entertainment, or both, such as a theater, stadium, museum, arena, automobile racetrack, or other place where performances, concerts, exhibits, games or contests are held.” Issue 519
Tag Archives New Jersey
A federal court in New Jersey has, on the basis of the primary jurisdiction doctrine, halted proceedings alleging that General Mills misleads consumers by labeling its Kix® cereals with bioengineered corn as “made with all natural corn.” In re General Mills, Inc. Kix Cereal Litig., No. 12-249 (D.N.J., order entered November 1, 2013). Citing rulings from California and Colorado referring the matter to the U.S. Food and Drug Administration (FDA) for resolution, the court stated that “the issue of whether products may be labeled ‘Natural’ when they are made with bioengineered forms of corn falls within the expertise of the FDA and deference to the FDA’s regulatory authority is appropriate here.” Information about the Colorado litigation appears in Issue 492 of this Update. The court “administratively terminated” (i) the action “until such time as the FDA responds to this referral” or the referrals in the two other cases, and (ii) the…
A federal court has dismissed without prejudice the first amended complaint filed in a putative class action alleging that Weight Watchers International misleads consumers by misrepresenting the number of calories in its line of diet ice cream bars. Burke v. Weight Watchers Int’l, Inc., No. 12-6742 (D.N.J., decided October 17, 2013). While the court held that it was premature to decide whether the plaintiff had standing to bring claims as to diet bars she did not purchase, persuaded by other courts that this was more properly decided at the class certification stage, it agreed with the defendants that the state law-based claims were preempted. The Food and Drug Administration has set forth the five methods that can be used to calculate the total number of calories in a food product labeled with that information. In the court’s view, “Burke’s claims are preempted because she has failed to plead two separate…
The Mexican brewer that makes Dos Equis® beer and has advertised it with a distinctive campaign since 2007 has brought a trademark and copyright infringement lawsuit against a New Jersey-based company and its president for an advertising campaign that allegedly mimics the brewer’s “Most Interesting Man in the World®” ads. Cervezas Cuauhtémoc Moctezuma, S.A. de C.V. v. KCI, Inc., No. 13-5044 (D.N.J., filed August 22, 2013). According to KCI’s LinkedIn page, the company offers storage area network (SAN) maintenance services. The complaint alleges that defendants have filed trademark applications for and use in a YouTube video the marks “The Most Interesting SAN Architect in the World” and “I Don’t Always Use Third Party Companies When I Buy and Maintain SAN Equipment But When I Do It’s Always Team KCI . . . Stay Convergent My Friend.” This compares with the brewer’s registered marks “The Most Interesting Man in the World” and…
A New Jersey resident has filed a putative nationwide class action against the Campbell Soup Co. and American Heart Association (AHA) claiming that the “Heart-Check Mark” which AHA allows Campbell to place on more than 30 varieties of its canned soups in exchange for a fee misleads consumers into believing that these products meet AHA’s heart-healthy nutritional guidelines when a single serving actually contains nearly three times the amount of sodium permitted under those guidelines. O’Shea v. Campbell Soup Co., No. 13-4887 (D.N.J., filed August 13, 2013). According to the plaintiff, “Properly characterized, the real meaning of the AHA’s Heart-Check Mark certification is, ‘Unhealthy, but maybe not as bad for you as other products.’” Also characterizing the certification program as a “scheme,” the plaintiff alleges, “By the AHA selling, and Campbell’s buying, the right to affix the AHA’s seal of approval to its products, they falsely represent to the public…
The Judicial Panel on Multidistrict Litigation (JPML) has denied transfer to a multidistrict litigation (MDL) court of consumer-fraud lawsuits involving Capatriti brand “100% Pure Olive Oil” made by Kangadis Food Inc. d/b/a The Gourmet Factory and numerous snack, cereal, protein bar, and frozen entrée products made by the Kashi Co. In re Capatriti Brand Olive Oil Mktg. & Sales Practices Litig., MDL No. 2469; In re Kashi Co. Mktg. & Sales Practices Litig., MDL No. 2456 (J.P.M.L., decided August 6, 2013). According to the court, centralization is not appropriate in the olive oil suit because the Southern District of New York action has made “significant progress” and the number of actions pending in adjacent districts is small with a “correspondingly limited number of involved counsel and courts.” Because the plaintiff in a New Jersey action has considered voluntarily transferring his action to New York, the JPML found that alternatives to centralization…
Putative class actions have been filed against the Anheuser-Busch Cos. (AB) in federal courts in California, New Jersey and Pennsylvania, alleging that “consumers receive watered down beer containing less alcohol than is stated on the labels of AB’s products.” Giampaoli v. Anheuser-Busch Cos., LLC, No. 13-0828 (N.D. Cal., filed February 22, 2013); Wilson v. Anheuser-Busch Cos., LLC, No. 13-1122 (D.N.J., filed February 25, 2013); Greenberg v. Anheuser-Busch Cos., LLC, No. 13-1016 (E.D. Pa., filed February 25, 2013). Claiming that the company uses a technology enabling it to create precise alcohol levels in its beer products, each plaintiff seeks to certify a nationwide class of consumers who have purchased AB products such as Budweiser®, Bud Ice®, Bud Light Premium®, Michelob®, Michelob Ultra®, Hurricane High Gravity Lager®, King Cobra®, Busch Ice®, Natural Ice®, Black Crown®, and Bud Light Lime®. Alleging violations of consumer fraud laws and breach of state and federal warranty laws, the plaintiffs…
Joining the nearly dozen states that have enacted laws to restrict bisphenol A (BPA) in food packaging—particularly with respect to children’s food and beverage containers—New Jersey lawmakers have introduced a bill that would make it illegal to sell or distribute food and beverage containers intended for use by young children that contain the chemical. The bill cites BPA studies alleging “cause for concern about the hazards of exposure to it, such as possible neural and behavioral effects caused by BPA in utero, and further concern that the chemical could cause problems in developing fetuses and young children.” Introduced by Assemblyman Troy Singleton (D-Burlington) and known as the “Child Food and Beverage Packaging Act,” the legislation would make it “an unlawful consumer fraud practice for a person to sell, offer for sale or distribute for sale in the state a food or beverage storage container made with or composed of BPA and…
As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013). Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming that his sandwich was less than 11 inches long and alleging a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.” New Jersey residents John Farley and Charles Pendrak allege in state court, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than…
After deciding that the plaintiff lacked standing to bring a consumer-fraud class action under the Class Action Fairness Act, a federal court in New Jersey has granted his motion to dismiss without prejudice, while denying the defendants’ cross-motion for partial summary judgment because it lacked subject matter jurisdiction. Robinson v. Hornell Brewing Co., No. 11-2183 (D.N.J., decided December 13, 2012). The plaintiff had sought declaratory and injunctive relief on behalf of a class of purchasers of Arizona beverages that contain high-fructose corn syrup and were labeled as “all natural.” He sought to certify the class under Rule 23(b)(2). According to the court, the evidence showed that the plaintiff had no intention of purchasing these products in the future and therefore could not show a reasonable likelihood of future injury from the defendants’ conduct. Thus, the court denied his motion to certify the class for lack of standing to seek injunctive…
