A New York federal court has rejected Chobani, LLC’s motion for reconsideration of a preliminary injunction preventing the company from claiming in its advertising that competitor Dannon Co.’s yogurt products contain chlorine and are thereby unhealthy, unsafe and inferior to Chobani yogurt. Chobani, LLC v. Dannon Co., Inc., No. 16-0030 (N.D.N.Y., order entered April 22, 2016). Chobani’s marketing campaign displayed an image of a swimming pool—which is cleaned with calcium hypochlorite, a substance colloquially referred to as “chlorine”—while asserting that Dannon Light & Fit® yogurt contained chlorine, one of four chemical elements that constitute sweetener sucralose. Additional details about the complaint appear in Issue 590 of this Update. According to the court, Chobani argued that the “limitations place it at a competitive disadvantage because it completely precludes usage of the phrase ‘no bad stuff’ in relation to Dannon products regardless of whether or not a safety message is at issue.…
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A consumer has filed a putative class action alleging Outernational Brands, Inc. mislabels its Vivaloe aloe-vera beverages as “All Natural” and preservative-free even though the products contain citric acid. Chen v. Outernational Brands, Inc., No. 16-1634 (E.D.N.Y., filed April 4, 2016). “The term ‘All Natural’ only applies to those products that contain no non-natural or synthetic ingredients and consist entirely of ingredients that are only minimally processed,” the complaint asserts. The plaintiff argues that the presence of citric acid, “which is not extracted from citric fruits but industrially synthesized via complex chemical synthetic routes and thus cannot be considered ‘minimally processed,’” precludes Outernational from labeling Vivaloe as “All Natural” or free of preservatives. The complaint admits the U.S. Food and Drug Administration has not defined “natural,” but argues “there is no reasonable definition of ‘All Natural’ that includes ingredients that, even if sourced from ‘nature,’ are subjected to extensive transformative…
A New York state appellate court has affirmed a lower court’s ruling dismissing a lawsuit against a local Fox TV station that investigated and reported on the allegedly false health claims of D’Lites ice cream in two stores. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. App. Div., 1st Dept., order entered March 8, 2016). The eight-minute “Shame Shame Shame” report informed viewers that the nutritional information advertised for a small serving did not correlate to the nutritional information of the ice cream served by two New Jersey stores; the owner of a D’Lites store—not one involved in the report—sued the station for libel. A lower court then dismissed the lawsuit; details appear in Issue 524 of this Update. “To the extent that there were purported discrepancies in the measurements of sugar and carbohydrates in the test results of the samples sold in stores, plaintiff does not dispute that…
A New York federal court has dismissed a putative class action alleging Whole Foods Market Group overcharged its customers for some prepackaged foods, finding that the plaintiffs failed to specify any particular transactions in which the grocer overcharged them. In re Whole Foods Mkt. Grp., Inc. Overcharging Litig., No. 15-5838 (S.D.N.Y., order entered March 1, 2016). The complaint was filed after the New York City Department of Consumer Affairs (DCA) announced the results of its investigation into “systemic overcharging” at Whole Foods stores across the city. The plaintiffs alleged that they “regularly purchased”—“one or two times per month”—pre-packaged products from Whole Foods that the DCA identified in its press release, including cheese, cupcakes and chicken fingers. The court took issue with the plaintiffs’ reliance on the DCA press release, finding that its “statements fall very far short of reporting an investigative finding of ubiquitous, systematic over-weighting at Whole Foods’ New…
The day before the rule was set to take effect on March 1, 2016, a New York state appeals court reportedly granted an emergency stay on enforcement of a municipal regulation requiring chain restaurants to feature salt-warning icons on menus next to items containing 2,300 milligrams or more of sodium. A justice in the Appellate Division of the New York Supreme Court granted the emergency measure, and a panel from that court will next decide whether to grant a preliminary injunction on enforcement followed by a full appeal of the case. See Bloomberg Business, February 29, 2016. Issue 596
Cumberland Packing Corp. and a group of consumers have reached a settlement agreement in a lawsuit alleging that Cumberland Packing Corp. misrepresents its Stevia in the Raw® sweetener products as all natural despite containing genetically modified organisms. Frohberg v. Cumberland Packing Corp., No. 14-0748 (E.D.N.Y., motion filed February 22, 2016). Under the agreement, Cumberland will pay up to $1,547,000 to reimburse class members with $2.00—or 40 percent of the average purchase price—per purchase of Stevia in the Raw®, to a maximum of $16 per person. In addition, Cumberland will remove “100% Natural” or “All Natural” label claims. Issue 595
A New York state court has reportedly refused to grant the National Restaurant Association’s request for a preliminary injunction to stall the enforcement of New York City’s new requirement that chain restaurants label menu items containing 2,300 mg of salt or more, which is set to take effect March 1, 2016. Nat’l Restaurant Assoc. v. New York City Dept. of Health, No. 654024/2015 (N.Y. Super. Ct., New York Cty., order entered February 24, 2016). During the hearing, the court reportedly distinguished the rule from a ban on the ingredient, noting, “It’s not a ban. It’s information. It’s a warning.” Under the rule, chain restaurants must display a logo of a triangle with the image of a salt shaker next to applicable menu items or risk a $200 fine for each infraction. See Bloomberg, February 24, 2016. Issue 595
A New York consumer has filed a putative class action against Victoria Fine Foods alleging the company falsely advertises its vodka sauce as “all natural” and free of preservatives despite containing citric acid. Shmidt v. Victoria Fine Foods, No. 16-0230 (E.D.N.Y., filed January 15, 2016). The complaint asserts that Victoria “sought to capitalize on consumers’ preference for natural products and the association between such products and a wholesome way of life.” The plaintiff argues that the primary jurisdiction doctrine does not apply because the U.S. Food and Drug Administration (FDA) “has repeatedly declined to adopt formal rule-making that would define the word ‘natural,” although she asserts that FDA “has loosely defined the term ‘natural’ as a product that ‘does not contain added color, artificial flavors, or synthetic substances.’” The complaint also cites the U.S. Department of Agriculture’s Food Standards and Labeling Policy Book, “which states that the term ‘natural’ may…
Chobani has filed a lawsuit seeking a declaratory judgment that its advertisements claiming competitor Dannon’s yogurt contains chlorine are not false or misleading, prompting Dannon to file a counterclaim seeking a preliminary injunction. Chobani v. The Dannon Co., Inc., No. 16-0030 (N.D.N.Y., complaint filed January 8, 2016, counterclaim filed January 11, 2016). Chobani’s complaint details its campaign, launched January 6, 2016, that asserts “Dannon’s Light & Fit Greek Yogurt contains sucralose, an artificial sweetener processed with added chlorine.” The company seeks a declaration that its claims are not false, misleading, disparaging or deceptive under the Lanham Act or New York state law. Dannon’s response argues that the ad campaign “has been misinforming consumers about the health and safety of Dannon’s products while exaggerating the relative health benefits of its own product.” The counterclaim defends sucralose and its use, arguing that it “is not ‘bad’ or harmful.” Further, “Chobani’s campaign falsely…
A New York federal court has denied Fifth Generation, Inc.’s motion to dismiss a lawsuit arguing that its Tito’s Handmade Vodka® is falsely advertised as handmade because machines are used in the process of manufacturing the product. Singleton v. Fifth Generation, Inc., No. 15-0474 (N.D.N.Y., order entered January 12, 2016). The court rejected the company’s claim that its adherence to U.S. Alcohol and Tobacco Tax and Trade Bureau standards does not relieve it from liability for false advertising claims. Further, the court found that “Tito’s labels could plausibly mislead a reasonable consumer to believe that its vodka is made in a hands-on, small-batch process, when it is allegedly mass-produced in a highly-automated one.” Accordingly, the court allowed several claims to continue, but dismissed allegations of breach of express warranties and negligent misrepresentation. The decision echoes a November 2015 ruling from a California federal court, which also refused to find that the safe harbor provision excused Fifth Generation from liability. Hofmann v. Fifth…
