The Judicial Panel on Multidistrict Litigation (JPML) has ordered the centralization of six actions claiming that Anheuser-Busch Companies, LLC, systematically overstated the alcohol content of its malt beverage products by diluting them with water. In Re: Anheuser-Busch Beer Labeling Mktg. & Sales Practices Litig., MDL No. 2448 (JPML, decided June 10, 2013). The putative class actions being centralized have all alleged that the beer manufacturer added extra water to 11 different products despite its claims that any deviation from the alcohol content stated on the product label “is within the range permitted by federal regulation.” In transferring the actions to the U.S. District Court for the Northern District of Ohio, the panel agreed with plaintiffs that “notwithstanding defendants’ apparent acknowledgement of some variance for unspecified products, the alleged conduct at issue—systematic overstatement of alcohol content—will remain in dispute and will involve complex discovery concerning the calibration of the involved equipment…
Tag Archives Ohio
An Ohio appeals court has determined that Ohio legislators improperly enacted an appropriations bill rider that was intended to preempt a Cleveland ordinance prohibiting the use of “industrially produced trans fat” in foods prepared by retail food establishments and food service operations, such as fast-food restaurants, unless the foods were served “in a manufacturer’s original sealed package.” City of Cleveland v. Ohio, No. 98616 (Ohio Ct. App., 8th App. Dist., Cuyahoga Cty., decided March 28, 2013). Additional information about Cleveland’s lawsuit challenging the state law appears in Issue 422 of this Update. The court agreed with the city that the state law was an unconstitutional attempt to preempt the city from exercising its home rule powers under the state constitution and that the provisions, enacted as amendments to a state appropriations bill, violated the constitution’s one subject rule. In determining that the appropriations bill amendment was not a “general law,” the…
A Cuyahoga County, Ohio, court has reportedly determined that a state law prohibiting municipalities from regulating the ingredients used in prepared foods, such as restaurant meals and grocery or bakery takeout items, does not preempt Cleveland’s ordinance prohibiting retail food establishments from selling foods containing trans fats. Cleveland announced the ban in April 2011, and several months later, Ohio’s General Assembly amended the state’s budget with a provision prohibiting municipalities from restricting the food at food service establishments “based on the food nutrition information.” Cleveland sued the legislature in January 2012, contending that it had encroached on its home rule authority. City of Cleveland v. Ohio, No. cv-12- 772529 (Ohio Ct. Com. Pl., Cuyahoga Cty., decided June 11, 2012). Additional information about the lawsuit appears in Issue 422 of this Update. The court apparently agreed, noting in the case docket that the amendment was unconstitutional and that the city’s enactment…
Putative class actions have been filed in New Jersey and California federal courts against Tropicana Products, Inc., alleging that the company misleads consumers by labeling and marketing its orange juice as “100% pure and natural,” when it actually “undergoes extensive processing which includes the addition of aromas and flavors.” Lynch v. Tropicana Prods., Inc., No. 11-07382 (D.N.J., filed December 19, 2011); Lewis v. Tropicana Prods., Inc., No. 12-00049 (E.D. Cal., filed January 6, 2012). Both plaintiffs seek to certify nationwide classes. The New Jersey plaintiff alleges unjust enrichment, breach of express warranty, violation of the New Jersey Consumer Fraud Act, and injunctive and declaratory relief. He requests compensatory, treble and punitive damages; prejudgment interest; restitution; injunctive relief; attorney’s fees; and expenses and costs of suit. The California plaintiff, who also seeks to certify a subclass of California consumers, alleges unjust enrichment; breach of express warranty; violation of the state Consumers…
According to the Organic Trade Association (OTA), Ohio has decided not to pursue regulations that would prohibit dairy producers from including on their labels statements that organic dairy products are made without antibiotics, pesticides or synthetic hormones. The Sixth Circuit Court of Appeals determined in September 2010 that those parts of the rule involving hormone-free statements violated the First Amendment and remanded the action to the federal district court for further development of the record as to the rule’s ban on composition claims related to antibiotics and pesticides. More details about the court’s ruling appear in Issue 366 of this Update. The trade group stated, “Ohio has now agreed to abandon the rule rather than trying to revive it, recognizing that the First Amendment allows organic dairy products to proudly state that they are produced in accordance with organic standards without the use of synthetic growth hormones, pesticides, or antibiotics.”…
Finding no clear state precedent, a federal court in Ohio has certified to the state supreme court a question arising in a case involving insurance coverage for Listeria-contaminated meats that led to the destruction of 1 million pounds of meat products in 2006. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-1686 (N.D. Ohio, order entered March 3, 2011). The question certified is as follows: In light of the Supreme Court of Ohio’s opinion in Anderson v. Highland House Co., 93 Ohio St. 3d 547 (2001), does the reasonable-expectations doctrine apply to a commercial general liability “all-risk” insurance policy, so that coverage, which otherwise would be excluded under the terms and conditions of the policy, is afforded, provided the trier of fact determines that the insured reasonably expected, when purchasing the policy, that the policy would cover the loss at issue. HoneyBaked Foods claimed a loss of approximately $8 million under…
The same day that the Federal Trade Commission announced a settlement over alleged deceptive advertising claims for DanActive® beverage and Activia® yogurt, Ohio’s attorney general filed a lawsuit alleging that The Dannon Co. has violated the state’s Consumer Sales Practices Act (CSPA) by failing to substantiate the health-related claims it makes for the products. Ohio v. Dannon Co., Inc., No. 10-12-18225 (Ct. Com. Pl., Franklin Cty., filed December 15, 2010). The complaint takes issue with marketing claims that the products either promote digestive health or boost immunity. Under the authority of the CSPA, Attorney General Richard Cordray (D) brings the action “in the public interest” and seeks declaratory and injunctive relief, liability for “the reasonable costs and expenses of the investigation and prosecution of the Defendant’s actions, including attorneys’ fees,” as well as $25,000 “for each unfair or deceptive act or practice alleged herein.” According to the complaint, Activia® has…
A federal court in Ohio has determined that, for the most part, an “all-risk” insurance policy excludes from coverage the losses sustained by a meat processor whose products were contaminated with Listeria during processing. HoneyBaked Foods, Inc. v. Affiliated FM Ins. Co., No. 08-01686 (N.D. Ohio, W. Div., decided December 2, 2010). Still, the court ordered the parties to prepare a question for certification to the Ohio Supreme Court as to whether, “notwithstanding the failure of the policy to cover the plaintiff’s loss, such loss might be covered” under a reasonable-expectations theory. According to the court, the meat processor was required to destroy about 1 million pounds of fully cooked ham and turkey products after it was discovered that the Listeria found in product samples matched sludge in a hollow roller that was part of the processing plant’s conveyor system. The company sought coverage for the disposed food products and additional losses…
The Sixth Circuit Court of Appeals has determined that parts of an Ohio law regulating the use of labeling on dairy products from cows not treated with growth hormones violate the First Amendment. Int’l Dairy Foods Ass’n v. Boggs, Nos. 09-3515/3526 (6th Cir., decided September 30, 2010). The court also upheld other provisions and remanded parts of the rule relating to antibiotics and pesticides for further proceedings. Thus, the court overturned, in part, a district court determination that upheld most of the rule’s provisions. The Ohio Director of Agriculture adopted a rule in May 2008 that (i) prohibited dairy producers from claiming their milk was hormone-free (a composition claim) and (ii) placed stringent restrictions on the use of the claim “this milk is from cows not supplemented with rbST [recombinant bovine somatotropin or recombinant bovine growth hormone (rbGH)]” (a production claim). Among other matters, the latter require verification, and contiguous…
After a federal court in Ohio preliminarily approved the settlement of claims that The Dannon Co. deceived consumers by advertising the purported digestive health benefits of its Activia® and DanActive® products, class notification was initiated. Gemelas v. The Dannon Co., Inc., No. 08-236 (N.D. Ohio, order filed January 27, 2010). Without admitting liability, Dannon has agreed to create a $35 million fund for the settlement, which was discussed in detail in issue 320 of this Update. Claims must be submitted by October 1, 2010, and objections to the proposed settlement must be filed by May 24. The court has scheduled a June 23 hearing to consider any objections; to decide whether the settlement is fair, reasonable and adequate; and to determine what the plaintiffs’ lawyers will be paid.
