The New York City Food Policy Center at Hunter College has announced a May 20, 2014, meeting at the Roosevelt House Public Policy Institute at Hunter College in New York City, to discuss ways of translating conflicting information about salt into public health policy. Professor of Public Health at the City University of New York School of Public Health and Hunter College Nicholas Freudenberg is slated to moderate the panel with participants former Commissioner of Health, New York City Department of Health and Mental Hygiene’s Thomas Farley; and Professor and Department Chair of Epidemiology at the Mailman School of Public Health at Columbia University’s Sandro Galea Gelman. See NYCFoodPolicy.org, May 7, 2014. Issue 523
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Ice cream truck franchiser Mister Softee Inc. has filed a motion for a preliminary injunction in a lawsuit alleging trademark infringement and violation of a non-compete covenant against former franchisee Dimitrios Tsirkos, who converted his 16 Mister Softee trucks to Master Softee trucks and began selling his own ice cream out of them at the beginning of the 2014 ice cream truck season. Mister Softee of Queens Inc. v. Tsirkos, No. 14-1975 (S.D.N.Y., motion filed April 25, 2014). Mister Softee ended Tsirkos’ franchise contract after he refused to pay $74,000 in franchise royalties for his trucks, but Tsirkos allegedly adjusted the logo on his trucks, started his own soft-serve depot and began selling ice cream in New York City anyway. Tsirkos has filed a motion opposing the injunction, and a hearing is set for May 15, 2014. See Law360, May 2, 2014. See New York Daily News, May 1, 2014. …
Four former employees of T.G.I. Friday’s, Inc. have filed a putative class action against the restaurant and its parent company, Carlson Restaurants, Inc., to recover unpaid wages, including overtime compensation and unlawful deductions. Flood v. Carlson Restaurants Inc., No. 14-2740 (S.D.N.Y., filed April 17, 2014). The former employees claim that T.G.I. Friday’s managers required them to work in violation of the Fair Labor Standards Act and New York Labor Law. In the complaint, the employees allege that managers required tip-earning workers to do “side work” like rolling silverware, cleaning the restaurant and other tasks that did not merit them tips while the restaurant paid them at the reduced minimum wage reserved for tipped workers. They further allege that managers prevented the employees from receiving their earned overtime pay by lowering the amount of time the employees were on the clock each week to below 40 hours and that the restaurant…
A federal court in New York has dismissed an amended complaint filed against high-fructose corn syrup (HFCS) manufacturers, alleging that the HFCS in foods and beverages, such as McDonald’s hamburger buns and Pepsi, was a substantial factor in causing a 14-year-old girl to develop Type 2 diabetes. S.F. v. Archer-Daniels-Midland Co., No. 13-634, decided April 21, 2014). The plaintiff alleged market-share liability under the tort doctrines of strict liability, negligence and failure to warn. The court agreed with the defendants that Type 2 diabetes is a multifactorial disease, stating “[n]o expert opinion is required to arrive at this conclusion.” And even accepting the allegations as true, the court said, “[T]here is little in it to suggest that Plaintiff could prove that her consumption of some foods containing HFCS over the course of her life was a substantial factor in causing Type 2 diabetes. . . . [A]side from idly listing various…
The former wife of billionaire Chobani, Inc. CEO Hamdi Ulukaya has alleged that he “boasted on occasions that he had obtained the formula for the Chobani brand of yogurt from [competitor] Fage by bribing a former employee of Fage. He traveled to Europe and bribed this individual with 30,000 Euros.” Giray v. Ulukaya, No. 652838-2012 (N.Y. Sup. Ct., N.Y. Cty., memorandum filed April 3, 2014). She made the allegation in a memorandum of law filed in support of her motion for injunctive relief in litigation seeking a determination that she is a 53 percent shareholder in defendant Euphrates, Inc., the assets of which, she claims, were used to create Chobani. Plaintiff Ayse Giray, a New York physician, also claims that she financed the formation of Euphrates “and is merely claiming what was acknowledged by defendants in writing. The yogurt was based upon a recipe he stole from a competitor, Fage.…
According to New York Attorney General (AG) Eric Schneiderman, Phusion Projects, LLC, the company that makes Four Loko flavored malt beverages, has agreed to settle allegations by 20 attorneys general and the San Francisco city attorney that the company marketed and sold its products in violation of consumer protection and trade practice statutes. In re Investigation by Eric T. Schneiderman, N.Y. AG of Phusion Projects, LLC, No. AOD 14-075 (N.Y. AG, Bureau of Consumer Frauds & Protection, March 25, 2014). Without admitting any liability, the company has agreed not to (i) promote the misuse of alcohol or mixing flavored malt beverages with caffeinated products; (ii) manufacture, market, sell, or distribute any caffeinated alcohol beverages; (iii) provide materials to wholesalers, distributors or retailers promoting mixing flavored malt beverages with caffeinated products; (iv) sell, distribute or promote alcohol beverages to underage persons or hire underage persons to promote these products; (v) use college-related…
A federal court in New York has refused to dismiss claims alleging that Bumble Bee Foods is strictly liable for and was negligent in failing to warn about the mercury in its products in a lawsuit alleging personal injury from excessive consumption of the company’s tuna products, which contain methylmercury. Porrazzo v. Bumble Bee Foods, LLC, No. 10-4367 (S.D.N.Y., order entered February 27, 2014). An earlier ruling in the case is summarized in Issue 413 of this Update. The plaintiff, who apparently consumed one to two cans of tuna daily for more than two years and was diagnosed with dangerously high levels of mercury in his body, also brought claims for breach of implied warranty of merchantability and violations of certain state statutory provisions involving agricultural and business law. The court found that the issues argued in Bumble Bee’s motion for summary judgment involved genuine issues of material fact that…
A federal court in New York has denied the motion for summary judgment filed by the defendant in litigation alleging that it mislabeled its industrially processed olive-pomace oil as “100% Pure Olive Oil.” Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered February 25, 2014). Details about the court’s grant of the plaintiffs’ motion to certify a class appear in Issue 507 of this Update. The court rejected, again, the defendant’s argument that its Capatriti olive-pomace oil is, as a matter of law, olive oil. According to the court, “there exists more than sufficient evidence for a trier of fact to determine that Capatriti is not 100% pure olive oil. Capatriti has more trans-fat and fewer antioxidants than virgin olive oil, is tasteless, is made from the seed and skin rather than the flesh of the olive, and undergoes chemical treatment with solvents, rather than a…
TreeHouse Foods, Inc. has filed an antitrust and unfair competition lawsuit against Green Mountain Coffee Roasters, Inc. and Keurig, Inc., alleging that they have undertaken a series of unlawful practices that have allowed them to dominate the single-serve coffee market, despite the expiration of their “K-Cup” patents in 2012. TreeHouse Foods, Inc. v. Green Mountain Coffee Roasters, Inc., No. 14-0905 (S.D.N.Y., filed February 11, 2014). Among other matters, the plaintiffs claim that Green Mountain (i) eliminated potential competitors by acquiring them; (ii) systematically tied up vertical distribution channels for competitive cups by entering restrictive exclusive dealing contracts with companies at all levels of the compatible cup distribution system, including machinery sellers, compatible cup component sellers, competitor coffee roasters and coffee brands, and retailers selling compatible cups to end user consumers, businesses and institutions; (iii) filed an unsuccessful patent infringement lawsuit against the plaintiff—the Federal Circuit concluded that “Keurig is attempting to…
A federal court in New York has denied in part and granted in part the motion to dismiss filed by the defendants to consumer-fraud litigation claiming that their Smart Balance® Fat-Free milk products with added omega-3s are misbranded because they contain 1 gram of fat from the omega-3 oil blend ingredient. Koenig v. Boulder Brands, Inc., No. 13-1186 (S.D.N.Y., order entered January 31, 2014). The court determined that the state law-based claims were not preempted by federal food labeling laws, whether the claims involve the application of milk regulations as argued by the plaintiffs or combination product requirements as argued by the defendants. Among other things, the court refused to find the defendants’ “combination products” preemption theory tenable because (i) it was based on FDA compliance policy guides, “which constitute advisory opinions”; (ii) the defendants failed to cite any FDA policy or regulations directly addressing the milk products at issue…
