Tag Archives New York

Consolidated litigation to determine whether Kind LLC misleads consumers by marketing its products as "all natural" and made without genetically modified organisms (GMOs) will continue after a two-year delay. In re Kind LLC "Healthy and All Natural" Litig., No. 15-2645 (S.D.N.Y., entered February 11, 2019). The court previously stayed the litigation in anticipation of U.S. Food and Drug Administration (FDA) guidance documents on when the uses of "natural" and "non-GMO" are appropriate on food labeling. "Given that there is no reason to continue the stay on the 'non-GMO' claims and that neither party wishes to litigate the claims in piecemeal fashion, it makes sense to begin discovery," the court held. "Moreover, this Court explained that the case for lifting the 'all natural' stay would be 'substantially stronger' if the FDA failed to provide guidance by August 2018. Six months later, guidance is still awaited. It is time for this multi-district…

Following a settlement with California district attorneys making similar allegations, Russell Stover and Ghirardelli Chocolates have been targeted in a New York putative class action alleging the companies' chocolate packages are "predominantly empty" "through the large void spaces which comprise most of the packaging interior around the actual few items contained therein." Faison v. Russell Stover Chocolates LLC, No. 19-0721 (E.D.N.Y., filed February 5, 2019). The complaint asserts that consumers cannot see the chocolates in the opaque packaging, "causing them to believe the chocolate contents filled all, most, or more of the packaging than they actually did." The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for allegations of unjust enrichment, fraud, negligent misrepresentation, breach of warranties and violations of New York's consumer-protection statutes.

A councilwoman has reportedly proposed to criminalize the sale of foie gras in New York City, citing the U.S. Supreme Court's refusal to examine California's force-fed foie gras ban. The bill would make the sale of foie gras a misdemeanor and allow the imposition of a one-year prison sentence and fines up to $1,000 for each offense. "Force-feeding a bird for the sole purpose of making it sick to create some bizarre delicacy is gruesome and inhumane. This may have been acceptable in 2500 BC but I think we know better now," a councilman who supports the bill is quoted as saying.

Two consumers have alleged that National Beverage Corporation misleads buyers of LaCroix sparkling water because it advertises the products as “all natural” and “100% natural” while they contain flavors composed of “between 36% and 98% synthetic ingredients.” Graham v. Nat’l Beverage Corp., No. 19-0873 (S.D.N.Y., filed January 29, 2019). The complaint cites the Center for Applied Isotope Studies at the University of Georgia, which uses “compound specific stable isotope analysis [] and gas chromatography isotope ratio mass spectrometry to generate multi-component, multi-element data for the enhanced characterization of organic chemical processes and source validation.” The plaintiffs seek class certification, injunctions, damages and attorney’s fees for alleged violations of New York consumer-protection law, unjust enrichment and breach of warranties.

A consumer has filed a putative class action alleging Mondelez Global LLC misleads consumers by making its Honey Maid graham crackers primarily with white flour rather than graham flour. Kennedy v. Mondelez Global LLC, No. 19-0302 (E.D.N.Y., filed January 15, 2019). The complaint alleges that Honey Maid products are marketed as "graham crackers" while the ingredients panel lists "unbleached enriched flour" first and "graham flour" second. The plaintiff cites Dictionary.com to assert that consumers expect a "graham cracker" to be "a slightly sweet cracker made of whole wheat flour" and that any cracker made with more white than graham flour cannot be called a graham cracker. The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for an alleged violation of New York consumer-protection law, negligent misrepresentation, fraud, unjust enrichment and breach of warranties.

A plaintiff has alleged that Food for Life Baking Co. Inc. misled consumers by advertising its cereal product, Ezekiel 4:9, as nutritionally superior to comparable cereal products because it is made with sprouted grains. Elliott v. Food for Life Baking Co. Inc., No. 19-0249 (E.D.N.Y., filed January 13, 2019). The complaint asserts that Ezekiel 4:9's labeling makes nutrient claims comparing its sprouted grains to non-sprouted grains without including "any reference food upon which the relative claims are based, which is misleading because there is no way to accurately evaluate the statements regarding the higher nutritional values of sprouted grains compared to non-sprouted grains." In addition, the complaint contests Ezekiel 4:9's assertion that the grains are a "living food" because "by the time the sprouted grain is dried, grounded into flour and heated, any nutritional benefits which may have existed have been extinguished." For allegations of fraud, negligent misrepresentation, unjust enrichment,…

A consumer has alleged that Nuts 'N More LLC's White Chocolate Peanut Spread does not contain the amount of milkfat required to meet the U.S. Food and Drug Administration (FDA) definition of "white chocolate." Morrison v. Nuts 'N More LLC, No. 18-11192 (S.D.N.Y., filed November 30, 2018). According to the complaint, FDA requires white chocolate to contain "not less than 3.5 percent by weight of milkfat," but the white chocolate spread does not contain any dairy ingredients. "Because there is no additional milkfat to supplement the Product to meet FDA definition of white chocolate, the Product cannot be marketed as white chocolate and thus must be deemed imitation white chocolate," the plaintiff asserts. She alleges that she and other consumers paid a premium for what she believed to be white chocolate "and received an inferior Product than what was represented to them by Defendant." For alleged violations of New York…

A consumer has filed a putative class action alleging that Reed's Inc. misleads consumers by labeling its Virgil's Sodas as made with "natural ingredients" and "no preservatives" despite containing citric acid. Mason v. Reed's Inc., No. 18-10826 (S.D.N.Y., filed November 19, 2018). The complaint asserts that citric acid "is a synthetic compound" "usually produced from certain strains of the mold Aspergillus niger" and "the application of chemical solvents such as sulfuric acid." The plaintiff alleges that the company's "misrepresentations deceive consumers into thinking they are receiving healthier and 'natural' soda, when they are not." "Consumers cannot discover the true nature of the Products from reading the label," the plaintiff argues. "Discovery of the true nature of the content of the Products requires knowledge of chemistry that is not available to the average reasonable consumer." She seeks class certification, an injunction requiring "proper, complete, and accurate labeling of the products," damages…

A consumer asserts that Miyoko's Kitchen Inc.'s "vegan butter" misleads consumers into believing the product is "a 'form' of butter" despite lacking "any milk or dairy ingredients and the functional, nutritional, sensory and organoleptic attributes which consumers associate with butter." Brown v. Miyoko's Kitchen Inc., No. 18-6079 (E.D.N.Y., filed October 30, 2018). The products "bask in dairy's 'halo' by using familiar terms to invoke positive traits—including the significant levels of various nutrients typically associated with real dairy foods," the complaint alleges. The plaintiff argues that consumers "prefer butter over its imitators" because of its "unique and unduplicated taste," "mouthfeel" and "ability to enhance the texture of and other qualities of (mashed) potato products." "The plant-based Product is not butter because it is derived from coconut (lauric) oil and nut ingredients, among others, and lacks any fat derived from cow's milk," the plaintiff argues. The product meets U.S. Food and Drug…

A consumer has alleged that Iberia Foods misleads consumers by substituting giant squid for octopus in three of its octopus products. Zapata Fonseca v. Iberia Foods Corp., No. 18-6279 (E.D.N.Y., filed November 5, 2018). The plaintiff's putative class action asserts that Iberia and its supplier, Orbe, either knew or should have known that the products were not octopus, which the plaintiff purportedly discovered through third-party DNA testing. "Squid is significantly cheaper and of a lower quality than octopus," the complaint argues. "In fact, the squid undergoes a chemical treatment in order to make it more similar to octopus in its texture. This process also eliminates a very characteristic taste of the dosidicus gigas with chemical substances to obtain a neutral flavor. Additional testing has revealed that this bait-and-switch, and active concealment, is occurring throughout the Orbe Cross-Brand Octopus Products as well." For alleged violations of New York consumer-protection statutes and…

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