Tag Archives New York

Friendly's Manufacturing and Retail markets its ice-cream products as "flavored exclusively from vanilla beans" but uses artificial flavors in at least 57 products, including cakes, cartons, cones, bars and sandwiches, according to a consumer's putative class action. Charles v. Friendly's Mfg. & Retail LLC, No. 19-6571 (S.D.N.Y., filed July 15, 2019). The complaint asserts that Friendly's sells its products as "vanilla" flavored but does not use vanilla-derived flavor. "The Products are misleading because they are marketed as vanilla ice cream adjacent to other vanilla ice cream products which contain vanilla flavoring exclusively from vanilla beans," the plaintiff argues, providing a competitor's label showing "vanilla extract" as an ingredient. "Where two similarly labeled products are situated in the same category or section of a store and their representations as to quality and/or fill are identical, yet the former is lacking the quantity of the characterizing ingredient (vanilla) or qualities, the reasonable…

A plaintiff has alleged that Danone North America misleads consumers by labeling its Dannon and Oikos yogurts as featuring "vanilla with other natural flavors" because the products contain "less vanilla flavor derived from vanilla beans than their name suggests." Andriulli v. Danone N. Am., No. 19-5165 (S.D.N.Y., filed June 2, 2019). The plaintiff asserts that the product flavor "should be labeled 'Vanilla-Vanillin Extract/Flavoring/Powder, Imitation' so consumers are not misled as to the flavor of the Products." Further, the complaint states, Oikos vanilla-flavored yogurt includes beta carotene, which "has the effect of modifying the color of the product closer to the color consumers associate with a product flavored exclusively by vanilla bean components — a tanner, darker shade like in the following stock image." The complaint then features a light orange square. "This coloring makes the consumer less likely to question or probe into the amount and type of vanilla flavor…

Four consumers have filed a putative class action alleging that Kellogg Sales Co. misleadingly markets its products as promoting health and wellness despite containing added sugars. DiGregorio v. Kellogg Sales Co., No. 19-0632 (N.D.N.Y., filed May 28, 2019). The complaint details studies about the health effects of sugars on the human body and argues that the "high amounts of added sugar" in Kellogg's cereals and bars render regular consumption of the products as "likely to contribute to excess added sugar consumption, and, thereby, increased risk for and contraction of chronic disease." "Although Plaintiffs were the victims of Kellogg's longtime and general policy and practice with respect to the cereals and snack bars they purchased and the labels they saw, this Complaint and their claims are not so limited; rather, plaintiffs seek through this lawsuit to enjoin Kellogg's policy and practice generally, including but not necessarily limited to the products, labels,…

A consumer has filed a putative class action alleging that Stewart's Fountain Classics beverages are misleadingly marketed as having a "Creamy Vanilla Taste" despite containing artificial flavors. Dalton v. Mott's LLP, No. 19-2960 (E.D.N.Y., filed May 19, 2019). The plaintiff admits that the label discloses the product contains artificial flavors but argues that the "nostalgic imagery and glass bottles assist in focusing the consumers' attention on the upper-right characterizing flavor claim, and away from the inconspicuous disclosure of artificial flavors at the bottom of the label." For alleged violations of California's consumer-protection statutes, negligent misrepresentation, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney's fees.

A consumer has filed a putative class action alleging that Nature's Path Foods USA Inc. misleads consumers by marketing the filling of its Wildberry Acai Toaster Pastries as containing high levels of acai berries despite containing more apples, raspberries, blueberries and other fruits. Louis v. Nature's Path Foods USA Inc., No. 19-2584 (E.D.N.Y., filed May 1, 2019). The complaint features an image of the front and back labels, alleging that acai berries account for 45 percent of the berries shown in packaging images, and the plaintiff asserts that the "use of the term 'acai' in the Product name and the numerical superiority of the acai berries depicted relative to other berries cause a reasonable consumer to expect the Products contain more acai berries than other identified and named fruit ingredients." The plaintiff also alleges that the ingredient list includes a number of fruits—apples, blueberries, strawberries and others—in whole form but…

Post Consumer Brands LLC allegedly misleads consumers by marketing its Cocoa Pebbles and related products as made with "real cocoa" despite listing only "cocoa (processed with alkali)" in the ingredients panel, according to a consumer's putative class action. Copeland v. Post Consumer Brands LLC, No. 19-2488 (E.D.N.Y., filed April 26, 2019). The complaint asserts that alkali in cocoa affects "the taste and color of the cocoa powder to such an extent that they are a characterizing feature"; further, consumers believing the product to contain "real cocoa" expect "the cocoa powder component to be nutritionally and organoleptically superior than it actually is." For alleged violations of California's consumer-protection statutes as well as negligent misrepresentation, breach of warranties, fraud and unjust enrichment, the plaintiff seeks class certification, injunctive relief, restitution, damages and attorney's fees.

The U.S. Environmental Protection Agency (EPA) has affirmed its previous opinions finding that "there are no risks to public health when glyphosate is used in accordance with its current label and that glyphosate is not a carcinogen." “EPA has found no risks to public health from the current registered uses of glyphosate,” EPA Administrator Andrew Wheeler said in a press release. “Today’s proposed action includes new management measures that will help farmers use glyphosate in the most effective and efficient way possible, including pollinator protections. We look forward to input from farmers and other stakeholders to ensure that the draft management measures are workable, realistic, and effective.” Meanwhile, the New York legislature has passed a ban on chlorpyrifos that would take effect January 1, 2020. After that date, aerial application of the pesticide would be prohibited; after January 1, 2021, all use of the pesticide would be prohibited except for…

The U.S. Court of Appeals for the Second Circuit has denied a plaintiff's appeal aiming to overturn a lower court's dismissal of a lawsuit alleging that Diet Dr Pepper is misleadingly named because it does not cause weight loss. Excevarria v. Dr Pepper Snapple Grp., Inc., No. 18-1492 (2nd Cir., entered April 17, 2019). "Plaintiffs argue that the use of the word 'diet' in Diet Dr Pepper is misleading because it conveys certain promises about the beverage’s usefulness in assisting with weight loss or healthy weight management, when in fact (Plaintiffs allege, based on a number of studies) the aspartame in Diet Dr Pepper likely causes weight gain," the appeals court stated in its brief opinion. "However, even assuming (without deciding) that Plaintiffs are right that a reasonable consumer would understand the word 'diet' to convey promises about weight loss or management, they have still failed to state a claim…

A New York federal court has dismissed a putative class action alleging that celebrity chef Rachael Ray's brand of dog food, Rachael Ray Nutrish, is misleadingly marketed as "natural" because it contains traces of pesticides. Parks v. Ainsworth Pet Nutrition, LLC, No. 18-6936 (S.D.N.Y., entered April 18, 2019). The court found that the plaintiff could not show that trace amounts of a pesticide would make the marketing of a "natural" product misleading. The plaintiff "asserts that the Products contain trace amounts of glyphosate, but not that the Products are composed of unnatural ingredients," the court found. "Moreover, Plaintiff does not set forth in his complaint the amount of glyphosate in the Products or whether that amount is harmful or innocuous. He argues that '[if] glyphosate is in the Products at any level . . . then the Products cannot be called 'Natural.'' [] But a reasonable consumer would not be…

A plaintiff has filed a putative class action alleging that Mondelez Global's Oreos—marketed as "always made with real cocoa"—are misleadingly marketed because they contain cocoa processed with alkali. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., filed April 17, 2019). The complaint describes the alkali processing method, which "reduces the acidity of cocoa powder," "detracting from the 'real cocoa' taste." The plaintiff asserts that the phrase "'always made with real cocoa' is intended to differentiate the cocoa in the Products from other cocoa ingredients bearing the standard cocoa designation, i.e., 'cocoa' or 'cocoa processed with alkali,' and implies the cocoa present in the Products is nutritionally and organoleptically superior." Further, "[n]o reasonable consumer would expect the cocoa in the Products to have been made with and contain alkalis because 'real,' in modifying the word 'cocoa,' represents the cocoa powder is included in its most simplified form." The plaintiff seeks class…

Close