A New York federal court has dismissed a putative class action alleging that Mondelez misled consumers by labeling Oreos as "always made with real cocoa" despite containing cocoa refined through an alkalizing process. Harris v. Mondelez Global LLC, No. 19-2249 (E.D.N.Y., entered July 28, 2020). The plaintiffs argued that the "representation 'real cocoa' is false, deceptive and misleading because consumers expect 'real cocoa' to indicate a higher quality cocoa than had the ingredient merely been accurately identified as 'cocoa' (minus the descriptor 'real')." "Plaintiffs do not dispute that the challenged products are in fact made with cocoa, which is fatal to their case," the court held. " Plaintiffs’ claims are trained on whether the product contains cocoa that is real, and the Oreos indisputably do contain cocoa, along with other ingredients." The court dismissed the claims with prejudice, finding the substantive issue could not be cured with better pleadings.
Tag Archives New York
The New York legislature has passed SB 8817, which would prohibit "the distribution, sale, and offer for sale in New York" any food packaging that contains perfluoroalkyl and polyfluoroalkyl substances (PFAS) as "intentionally added chemicals." "Food packaging is a key place to look for PFAS chemicals, as they often include non-stick components to repel grease. PFAS chemicals in food packaging can enter a human's bloodstream by leaching into food that is consumed, as well as find its way into the environment through disposal," states the bill's justification. "This bill would ban the entire class of PFAS chemicals from food packaging containers used in New York. Washington State signed similar legislation into law in April 2018. In order to protect the health and safety of New Yorkers, we must take an aggressive approach by prohibiting the use of all PFAS chemicals in food packaging."
The U.S. Court of Appeals for the Second Circuit has affirmed a lower court’s dismissal of a putative class action alleging Dunkin’ Brands Inc. misled consumers about the cuts of meat in its “Angus” line of products. Chen v. Dunkin’ Brands Inc., No. 18-3087 (2nd Cir., entered March 31, 2020). The plaintiffs argued that Dunkin marketed its products as containing “Angus Steak” despite containing ground beef patties rather than “an ‘intact’ piece of meat.” The appeals court first affirmed the dismissal of several plaintiffs on jurisdictional grounds before considering the merits of the argument. The complaint “identified three Dunkin Donuts television advertisements, providing descriptions along with video links, and alleged that the advertisements were deceptive in their use of the word ‘steak,’” the court noted. “All three advertisements, however, conclude with multiple zoomed-in images that clearly depict the ‘steak’ in the Products as a beef patty.” The court turned to…
A plaintiff has alleged that Frito-Lay North America Inc. fails to include a mandated front-of-package disclosure that its Cheddar and Sour Cream chips are flavored with artificial flavoring. Ithier v. Frito-Lay N. Am. Inc., No. 20-1810 (S.D.N.Y., filed March 1, 2020). The complaint asserts that "[b]ased on flavor composition analysis of the Products, the artificial flavor consists of compounds associated with butter flavor," and "butter flavor is known as enhancing and boosting the flavor of cheddar cheese." Thus, according to the plaintiff, the flavor of the chips should be listed as "Artificially Flavored Cheddar & Sour Cream." The plaintiff alleges fraud, unjust enrichment, negligent misrepresentation, breach of warranties and a violation of New York's consumer-protection statute, and he seeks class certification, injunctive relief, damages and attorney's fees.
A New York federal court has dismissed a lawsuit alleging that BEF Foods Inc. misleadingly marketed its Bob Evans mashed potatoes as containing butter. Sarr v. BEF Foods, No. 18-6409 (E.D.N.Y., entered February 13, 2020). The lawsuit alleged that the packaging promised "real butter" and "fresh potatoes" despite containing vegetable oil and preservatives. The court found that the product's ingredient list disclosed that the mashed potatoes contained both vegetable oil and butter, with butter as the more predominant ingredient. The court was also unpersuaded on the "fresh potatoes" point. "No reasonable consumer would conclude that the phrases 'Made with Fresh Potatoes' and 'Made with 100% Fresh Potatoes' [] imply that the finished Mashed Potatoes product itself was 'just prepared' or lacking preservatives," the court held. "BEF's representations unambiguously mean that the potatoes used as an ingredient in the Mashed Potatoes were fresh when so incorporated."
A consumer has filed a putative class action alleging Tipp Distributors Inc. mislabels its Steaz iced tea as "lightly sweetened" despite containing "objectively high amounts of sugar, as added sugar." Taylor v. Tipp Distrib. Inc., No. 20-0712 (E.D.N.Y., filed February 9, 2020). Consumers paid a premium for Steaz believing it to contain less sugar than its competitors, the complaint asserts, but it contains 20 grams of added sugar, 40% of the recommended daily intake. "By consuming the Products and the 40% DV of added sugar, the average person who wishes to follow the DGA must consume no more than 30 grams of sugar across 1,920 calories (2,000 calories – 80 calories)," the plaintiff argues. "It will be difficult to impossible for the average, reasonable consumer to not consume more than 30 grams of sugar in everything else they eat or drink because many foods and beverages have added sugars, albeit…
Hornell Brewing Co. Inc. and its subsidiary Arizona Beverage Co. allegedly misrepresent their fruit snacks product as all natural despite containing citric acid, gelatin, ascorbic acid, dextrose, glucose syrup and modified food starch, a consumer alleges. Silva v. Hornell Brewing Co. Inc., No. 20-0756 (E.D.N.Y., filed February 11, 2020). The plaintiff argues that these ingredients are synthetic and cites a 2013 U.S. Department of Agriculture draft guidance decision delineating what materials are natural or synthetic. "Congress has defined 'synthetic' to mean 'a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plants, animals, or mineral sources," the complaint argues. Further, "[s]urveys and other market research, including expert testimony Plaintiff intends to introduce, will demonstrate that the term 'natural' is misleading to a reasonable consumer because the reasonable consumer believes that the term “natural,” when used to…
New York Governor Andrew Cuomo has reportedly vetoed a bill that would have banned the use of chlorpyrifos by the end of 2021 but directed the state's Department of Environmental Conservation to issue a ban on the pesticide. His direction will result in an immediate ban on aerial uses of chlorpyrifos and phase out other uses by December 2020. An exception for spraying apple tree trunks will be permitted until July 2021. "This bill bypasses the rigorous process available to challenge an approved product and substitute the legislature's judgment for the expertise of chemists, health experts and other subject matter experts in this field," Cuomo stated in his veto message. "While I do not agree that a pesticide should be banned by legislative decree, I agree that New York must lead the way by taking action to ensure the public that all regulatory options are taken to limit exposure to…
A New York federal court has denied class certification to a group of consumers alleging that they were misled by Kellogg Co.'s Pringles Salt & Vinegar chips label into believing the product contained no artificial ingredients. Marotto v. Kellogg Co., No. 18-3545 (S.D.N.Y., entered December 5, 2019). The plaintiff identified himself as a chef who has a deep knowledge of molecular gastronomy and is married to an attorney who works at a law firm seeking to represent the putative class. "Unfortunately, for [the plaintiff], once he popped, the fun did, ultimately, stop," the court noted, explaining that the plaintiff stated he was misled by the sodium diacetate and malic acid on the ingredient list. The court found that the plaintiff "plainly failed to satisfy the predominance requirement" because only four of 20 Pringles labels contained the challenged "No Artificial Flavors" label. "How is the Court supposed to sift through tens…
A consumer has filed a putative class action alleging Whole Foods Market Group Inc. lists "organic dehydrated cane juice solids" as an ingredient in its 365 Everyday Value instant oatmeal rather than "sugar." Warren v. Whole Foods Mkt. Grp. Inc., No. 19-6448 (E.D.N.Y., filed November 15, 2019). "Consumers expect ingredients on a product to be declared by their common or usual name," the complaint asserts. "Where an ingredient contains the term 'juice,' consumers expect that ingredient to be derived from a consumable fruit or vegetable." The plaintiff seeks class certification, injunctive relief, damages and attorney's fees for alleged negligent misrepresentation, fraud and breach of express warranty.
