A consumer has filed a putative class action against Unilever U.S., PepsiCo and the Pepsi Lipton Tea Partnership alleging that their line of Pure Leaf® Iced Teas are misleadingly labeled as “All Natural” and preservative-free because they contain citric acid, a synthetic ingredient. Ren v. Unilever U.S., Inc., No. 156463/2015 (N.Y. Sup. Ct., filed June 26, 2015). The complaint asserts that Pure Leaf® labels indicate that the products are natural and contain no preservatives despite containing citric acid, which is “industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger.” The companies use citric acid as a preservative, the complaint argues, and it disputes the accuracy of a note in the ingredient list explaining that citric acid provides tartness. The plaintiff seeks class certification, declaratory judgments, damages, restitution, an injunction, and attorney’s fees for allegations of unjust enrichment, breach of warranties, negligent misrepresentation and violations…
Tag Archives New York
Echoing a lawsuit brought a week earlier by a competitor in the pepper category, a consumer has filed a proposed class action against McCormick & Co. alleging that the company underfills its tins of black pepper because it reduced the pepper in each tin by 25 percent but retained the traditional packaging size. Dupler v. McCormick & Co., No. 15-3454 (E.D.N.Y., filed June 15, 2015). Facing rising prices for black pepper, the complaint argues, McCormick has begun selling 1.5-ounce, 3-ounce and 6-ounce pepper products in place of its 2-ounce, 4-ounce and 8-ounce products, respectively, but continues to use the larger “iconic” packaging it used for decades. This “slack fill” violates the Food, Drug, and Cosmetic Act, the plaintiff argues, and she seeks to represent a New York class in an action for damages, an injunction and attorney’s fees. The unfair-competition suit against McCormick alleging violations of the Lanham Act and…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
The New York City (NYC) Board of Health has reportedly agreed to consider a proposed amendment to Article 81 of the NYC Health Code that would require food items containing more than 2,300 milligrams of sodium to be singled out on menus and menu boards with a salt-shaker icon and an accompanying warning statement. The proposed initiative would affect restaurant chains with more than 15 locations nationwide, and the mandated warning would state that the “sodium content of this item is higher than the total daily recommended limit (2,300 mg). High sodium intake can increase blood pressure and risk of heart disease and stroke.” Health officials assert that the average NYC adult consumes about 3,200 mg of salt daily (40 percent more than the recommended daily limit) and that restaurant and processed foods are the greatest sources of dietary sodium. If adopted, the warnings would take effect on December 1,…
Absolut Co. has filed a complaint and a motion for an injunction against Happy Hearts Wine LLC, a New York City importer of Israeli wine, after Absolut noticed a Certificate of Label Approval filed with the Alcohol and Tobacco Tax and Trade Bureau for “Kahfua,” which it alleges is too close to Kahlua®. Absolut Co. Aktiebolag v. Happy Hearts Wine, LLC., No.15-3224 (E.D.N.Y., motion filed June 3, 2015). Happy Hearts’ Kahfua, a “coffee expresso [sic] liqueur,” is packaged in a similar brown bottle with a similar yellow and red label written in a similar script to Kahlua®, Absolut argues in its motion. It further alleges that Happy Hearts has acted with bad faith by infringing Absolut’s trademarks. “Simply stated, there can be no ‘innocent explanation’ for such a blatant knockoff,” the motion asserts. In addition to trademark infringement, Absolut alleges that Happy Hearts is engaging in trademark counterfeiting, which requires…
Two plaintiffs have filed a lawsuit against Gerber Products Co. alleging that the company misrepresented its Gerber® Good Start® infant formula by advertising it as the “first and only formula whose consumption reduces the risk of infants developing allergies.” Hasemann v. Gerber Prods. Co., No. 15-2995 (E.D.N.Y., filed May 21, 2015). The complaint echoes a similar lawsuit against Gerber pending in New Jersey federal court. The plaintiffs assert that Gerber advertises its product as providing health benefits through partially hydrolyzed whey protein despite an alleged U.S. Food and Drug Administration denial in 2005 that Gerber’s formula aids against allergy development. The plaintiffs seek class certification and damages of more than $5 million. Additional details about Gerber’s successful motion to receive medical records in the analogous case appear in Issue 562 of this Update. See Legal Newsline, June 2, 2015. Issue 567
A group of consumers has filed a putative class action against Abbott Laboratories, Inc. alleging the company misrepresents its Similac Advance® Organic Infant Formulas because several of the ingredients are banned by federal law from use in food labeled “organic.” Marentette v. Abbott Labs., Inc., No. 15-2837 (E.D.N.Y., filed May 15, 2015). The plaintiffs challenge the products’ inclusion of beta carotene, biotin, taurine and lutein, among several other ingredients, and additionally assert that “at least one ingredient in these infant formulas is produced using genetically engineered materials—a practice forbidden in organic foods.” The complaint contends that Abbott knew that consumers would pay more for organic products and willfully misled them. The plaintiffs seek class certification, damages and an injunction for alleged violations of New York and California consumer-protection statutes, unjust enrichment and breach of warranty. Since the complaint was filed, Abbott has begun offering a version of Similac Advance® manufactured…
A New York federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging that Hain Celestial’s Earth’s Best® food and body-care products are deceivingly labeled as “organic,” finding that the Organic Foods Production Act (OFPA) does not preempt the plaintiffs’ claims. Segedie v. Hain Celestial Grp., No. 14-5029 (S.D.N.Y., order entered May 7, 2015). The plaintiffs challenged 69 food products and 20 body-care products labeled “organic,” “natural” or “all natural,” arguing that they contain ingredients inconsistent with the company’s claims. In assessing precedent on preemption, the court found that a federal agency’s approval of a label does not bar any challenge to that label. The court also determined that the plaintiffs’ claims were legally sufficient as to both the “organic” and “natural” challenges. Hain argued that the ingredients in question were subject to an exemption under OFPA because they were nutrient vitamins or…
A New York federal court has reportedly approved an agreement between Red Bull GmbH and a class of consumers, settling allegations that Red Bull falsely advertised its product as providing more benefit than coffee provides. Careathers v. Red Bull N. Am. Inc., No. 13-0369 (S.D.N.Y., order entered May 1, 2015); Wolf v. Red Bull GmbH, No. 13-8008 (S.D.N.Y., order entered May 1, 2015). The agreement allots $13 million to the 2 million claimants, of whom 60 percent will each receive $4.23 and 40 percent will each receive a four-pack of Red Bull energy drinks. The court cut the fees for plaintiffs’ counsel down to about $3.4 million, or about $1.4 million less than they requested; the attorney’s fees and class award were not linked, and the court apparently indicated that it would have preferred to lower the attorney’s fees amount to increase the total consumer amount to accommodate the large…
Food Network’s “Barefoot Contessa” and her company have reportedly reached a settlement agreement with Aqua Star (USA) Co. less than one month after the celebrity chef filed a complaint alleging trademark infringement for frozen dinners bearing the phrase “Contessa Chef Inspired.” Barefoot Contessa Pantry LLC v. Aqua Star (USA) Co., No. 15-1092 (U.S. Dist. Ct., S.D.N.Y., settlement reached March 12, 2015). Ina Garten and her company, Barefoot Contessa, alleged that Aqua Star and its subsidiary, OFI Imports, manufactured and sold frozen dinners too similar to products made by a former licensee of Garten’s name and likeness. Aqua Star has reportedly agreed to stop selling products with the Barefoot Contessa mark, remove and destroy the products from shelves by early May, and pay an undisclosed amount of money. Additional information about the complaint appears in Issue 556 of this Update. See SeafoodSource.com, March 13, 2015. Issue 559
