Tag Archives New York

Shook Partner Cary Silverman has authored a report exploring the rise in class actions filed in New York, which, he explains, "is largely a result of lawsuits targeting businesses that sell food and beverages." Class Action Chaos: The Rise of Extortionate Consumer Class Action Lawsuits in New York, created in partnership with the New York Civil Justice Institute, details how "the percentage of class action lawsuits targeting products that New Yorkers place in their shopping carts, grab at a grocery store, or buy at a restaurant has gone up." "Lawsuits claiming that businesses mislead consumers in how they labeled, marketed, or advertised food made up about one-third of deceptive practices class actions in 2015. Now, these 'food court' lawsuits account for about 60% of New York’s consumer class actions – exceeding deceptive practices claims against all other products and services combined. Over 100 food class actions were filed in New…

New York Attorney General Letitia James has announced a probe into whether baby food contains toxic elements such as arsenic and other metals. In a press release, James said, "“Baby food manufacturers have a legal and moral obligation to ensure the safety of their products, and provide peace-of-mind to the parents who rely on their products every day. Through this probe, I am committed to protecting the health and wellness of the next generation.” D.C. Attorney General Karl Racine filed a lawsuit against Beech-Nut Nutrition Co., alleging "that Beech-Nut’s deceptive and misleading advertising violated the District’s consumer protection laws and misled parents that its baby food underwent the most stringent testing and was fully safe for babies when, in fact, the food contained high levels of toxic heavy metals." Racine is quoted as saying, “No company should profit by illegally deceiving parents about products that actually jeopardize the health and…

A plaintiff has filed a putative class action alleging that Whole Foods Market Group Inc. misleads consumers by selling sparkling mineral water in a lemon raspberry flavor without an "appreciable amount" of lemons and raspberries. Kelly v. Whole Foods Mkt. Grp. Inc., No. 21-3124 (S.D.N.Y., filed April 11, 2021). The label of the water contains images of lemons and raspberries, the complaint asserts, and consumers "will expect the presence of a non-de minimis amount of lemon and raspberry ingredients, based on the pictures of these fruits." The plaintiff argues that the ingredient list, which shows the contents as "carbonated mineral water, organic natural flavors (raspberry, lemon)," fails to inform consumers the flavoring "mainly consists of flavors from fruits other than lemons and raspberries." "Because lemon oil and raspberry oil or raspberry extract are not separately identified ingredients, it means that any real lemon or raspberry flavoring is at most a de minimis…

Two consumers allege that Ancient Brands' Ancient Nutrition Bone Broth Protein products are marketed as beneficial to health but contain protein that is "largely indigestible to the human body and provides little to no actual benefit to consumers." Bush v. Ancient Brands LLC, No. 21-0390 (N.D.N.Y., filed April 5, 2021). The complaint asserts that Ancient Brands fails to calculate the protein content as a percentage of daily value or as calculated by the Protein Digestibility Amino Acid Corrected Score, allegedly violating state and federal regulations. The plaintiffs detail how protein content is calculated, asserting that the percentage daily value listed on the packaging provides consumers information on the quality of protein and is required on product packaging that contains a nutrient content claim for protein. The plaintiffs allege violations of New York and California consumer-protection statutes as well as fraudulent concealment, unjust enrichment and breach of express warranty.

A New York federal court has dismissed a lawsuit against Oregon Chai Inc. for failure to state a claim in litigation centered on whether using the term "vanilla" on packaging is misleading to consumers. Cosgrove v. Oregon Chai Inc., No. 19-10686 (S.D.N.Y., entered February 22, 2021). "In the past two years, counsel for Plaintiffs [] has filed numerous class action complaints across the country, including several in this District, challenging food manufacturers’ use of the term 'vanilla' in their descriptions or advertising," the decision begins. "In nearly all of these cases, the district court ultimately found that the plaintiffs had failed to state a viable claim for relief. This time, Plaintiffs challenge Defendant Oregon Chai, Inc. [], claiming that Defendant’s use of the term 'vanilla' and other statements on the packaging of its chai tea latte powdered mix is misleading to consumers. As set forth in the remainder of this Opinion,…

A New York federal court has dismissed some claims while allowing others to continue in a lawsuit alleging Whole Foods Market Group Inc. misleads consumers by not using graham flour to produce or honey to sweeten its "honey graham crackers." Campbell v. Whole Foods Mkt. Grp. Inc., No. 20-1291 (S.D.N.Y., entered February 2, 2021). The court found that the plaintiff adequately pleaded allegations that "the references to 'honey' and 'graham' on the product’s packaging are likely to lead a reasonable consumer to wrongly believe that these graham crackers contain more whole-grain flour than non-whole grain flour, and that honey is their predominant sweetener," so claims under the New York General Business Obligation Law can continue. The court dismissed a claim of negligent misrepresentation, finding the plaintiff "failed to allege the existence of a special relationship giving rise to a duty to speak on the part of the Defendant." The plaintiff's…

Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.'s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text "Traditional Icelandic Skyr" and photos of an Icelandic countryside, "gives consumers the belief it is made in Iceland," the complaint asserts. Although the back of the package indicates that the product is "made in Batavia, NY with domestic and imported ingredients," the plaintiffs allege they "relied upon the representations and indications of the Product's origins - literally and figuratively - in Iceland, and desired to purchase such a product." Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania's consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney's fees.

A plaintiff has filed a putative class action alleging Dietz & Watson Inc. misleads consumers by naming its product "Smoked Provolone Cheese" when the cheese's smoky flavor comes from "smoke flavor" rather than "slow cooking over a fire of wood chips." Jones v. Dietz & Watson Inc., No. 20-6018 (E.D.N.Y., filed December 9, 2020). The plaintiff alleges the cheese should be labeled "Natural Smoke Flavored Provolone Cheese" under U.S. Food and Drug Administration regulations on characterizing flavors. "Even if consumers were to view the ingredient list, a reasonable consumer would have no reason to know that listing 'smoke flavor' forecloses the possibility the Product was also subject to some smoking," the complaint asserts. "However, the Product has not undergone any real smoking, which is deceptive and misleading to consumers." The plaintiff alleges violations of New York's consumer-protection statutes, the Magnuson-Moss Warranty Act, fraud and negligent misrepresentation.

A consumer has filed a putative class action alleging that Inventure Foods Inc., which produces the T.G.I. Friday's line of frozen foods, produces its "mozzarella sticks" with cheddar. Nason v. Inventure Foods Inc., No. 20-10141 (S.D.N.Y., filed December 3, 2020). The plaintiff cites the ingredient list, which lists only cheddar and not mozzarella, and asserts that "cheddar is a 'hard' cheese less suitable for chewing and lacks the dairy taste of real mozzarella." The complaint further argues that "mozzarella is more nutritious because it contains more calcium and less fat and calories than cheddar." The plaintiff alleges violations of the Magnuson-Moss Warranty Act, New York's consumer-protection statutes and negligent misrepresenation.

Two consumers have alleged that Kellogg Co. markets promotions on the packaging of its products that end before the shelf life of the product. Seaman v. Kellogg Co., No. 20-5520 (E.D.N.Y., filed November 13, 2020). The complaint asserts that consumers rely on incentives listed on product packaging when deciding which product to purchase, but because the shelf life of the products extends beyond the expiration of the incentive, the products stay on store shelves longer than the length of the promotion and consumers purchase products relying on offers that they ultimately cannot use. "Where a shopper views a promotion such as described here, they will have no reason to scrutinize the fine print telling them when the promotion expires," the complaint argues. "Reasonable consumers are not so innately distrustful of companies and expect that all aspect of consumable items, including promotions, are functional throughout their shelf-life." The plaintiffs argue that…

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