The Judicial Panel on Multidistrict Litigation (JPML) has denied transfer to a multidistrict litigation (MDL) court of consumer-fraud lawsuits involving Capatriti brand “100% Pure Olive Oil” made by Kangadis Food Inc. d/b/a The Gourmet Factory and numerous snack, cereal, protein bar, and frozen entrée products made by the Kashi Co. In re Capatriti Brand Olive Oil Mktg. & Sales Practices Litig., MDL No. 2469; In re Kashi Co. Mktg. & Sales Practices Litig., MDL No. 2456 (J.P.M.L., decided August 6, 2013). According to the court, centralization is not appropriate in the olive oil suit because the Southern District of New York action has made “significant progress” and the number of actions pending in adjacent districts is small with a “correspondingly limited number of involved counsel and courts.” Because the plaintiff in a New Jersey action has considered voluntarily transferring his action to New York, the JPML found that alternatives to centralization…
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A federal court in New York has determined that while plaintiffs alleging they were sold olive-residue oil, or Pomace, instead of the “100% Pure Olive Oil” appearing on the labels of The Gourmet Factory’s Capatriti-brand products could not maintain a cause of action under the Magnuson-Moss Warranty Act, their claims did exceed the $5 million threshold for maintenance of the action in federal court under the Class Action Fairness Act (CAFA). Ebin v. Kangadis Food Inc. d/b/a The Gourmet Factory, No. 13-2311 (S.D.N.Y., order entered July 26, 2013). The plaintiffs apparently based their amount-in-controversy allegation on documents that the defendant submitted in parallel litigation brought by an olive oil trade association. Details about that suit appear in Issues 470, 482 and 483 of this Update. Thus the court rebuffed the defendant’s attempt to fault the plaintiffs for failing to conduct an independent investigation into the amount-in-controversy before filing the complaint,…
A federal court in New York has agreed to impose some of the preliminary injunctive relief requested by the North American Olive Oil Association in litigation alleging that Kangadis Food Inc., doing business as The Gourmet Factory, falsely labeled its product as “100% Pure Olive Oil” when it actually contained Pomace or was 100 percent refined olive oil. N. Am. Olive Oil Ass’n v. Kangadis Food Inc., No. 13-868 (N.D.N.Y., order entered April 25, 2013). The court agreed that consumers would likely be confused about Pomace, “an industrially processed oil produced from olive pits, skins, and pulp,” labeled as “100% Pure Olive Oil,” and agreed that the defendant, which had changed its product as of March 1, 2013, to remove the Pomace and sell instead 100 percent refined olive oil as “100% Pure Olive Oil,” likely had a significant amount of its old product on store shelves. Accordingly, the court…
The North American Olive Oil Association has brought an unfair competition and false advertising action against The Gourmet Factory claiming that it sells its Capatriti® brand as “100% Pure Olive Oil” when it is actually made from “leftover olive skins and pits using a combination of chemical solvents and high temperatures.” N. Am. Olive Oil Ass’n v. Kangadis Food Inc., d/b/a The Gourmet Factory, No. 113-868 (S.D.N.Y., filed February 6, 2013). The process apparently creates a byproduct referred to as “pomace,” and the complaint alleges that products containing pomace may not be marketed and labeled as olive oil under “an array of olive-oil making conventions, standard industry practices, international regulations, and federal and state laws.” The association allegedly purchased tins of the defendant’s product from store shelves in New York and New Jersey and shipped them to an expert in Italy for testing, which purportedly confirmed the presence of chemicals and…
The Australian Competition and Consumer Commission (ACCC) has fined a Kensington, South Australia, olive oil manufacturer a total of A$13,200 for marketing its products as “extra virgin” even though they purportedly did not meet international grade standards. According to a May 18, 2012, ACCC press release, The Big Olive Company Pty Ltd over a four-month period “supplied nearly three thousand 500ml bottles of ‘Oz Olio’ oil with a representation of extra virgin olive oil on the front label.” The commission has since alleged that some of these oils contained “more free fatty acids than permitted by olive oil trade standards,” indicating that the “olives used to make the oil were old, damaged or otherwise of poor quality and the oil was not extra virgin olive oil at the time of bottling.” ACCC apparently decided to test four imported oils and three domestic labels after receiving complaints from the Australian Olive…
The U.S. Department of Agriculture (USDA) recently announced the expansion of its Quality Monitoring Program to include extra virgin and organic extra virgin olive oil. According to an April 3, 2012, post on the USDA blog, the program hopes to address questions raised in the last few years about olive oil quality and provide consumers with assurance that the products they purchase meet grade standards. Under the program, which already evaluates other commodities such as canned, frozen and fresh fruits and vegetables, the Agricultural Marketing Service will verify “olive oil quality and purity using criteria based on the U.S. grade standards . . . and international criteria,” as well as conduct “unannounced plant visits to review product processes, quality assurance measures, and recordkeeping systems.” Products from the first program participant, Baltimore-based Pompeian, Inc., have reportedly met “chemical testing and flavor analysis requirements” and the company has agreed to additional site inspections.
According to a December 7, 2011, New York Times book review, a new tome by freelance writer Tom Mueller has claimed that 50 percent of the olive oil sold in America “is, to some degree, fraudulent.” Based on an August 13, 2007, New Yorker article, Extra Virginity: The Sublime and Scandalous World of Olive Oil apparently aims “to demonstrate the brazen fraud in the olive oil industry and to teach readers how to sniff out the good stuff.” To this end, Mueller reportedly explains how unscrupulous suppliers “frequently adulterate olive oil with low-grade vegetable oils and add artificial coloring,” resulting in “a urine-colored and musty butter substitute.” But aside from such “alarming” statistics, Times critic Dwight Garner ultimately found the prose too “unctuous” for his taste. “The Food and Drug Administration considers this adulteration a low priority. Grody olive oil is not killing anyone. We’re talking about a first-world problem here,” Garner…
Two putative class actions alleging that companies making and selling extra virgin olive oil (EVOO) sell their products at a premium despite their failure to meet certain EVOO standards have been dismissed by a federal court in Florida because the plaintiffs did not adequately plead their claims under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Meyer v. Colavita USA, Inc., No. 10-61781, Nachio v. Am. Rice Inc., No. 10-61793 (S.D. Fla., decided September 13, 2011). The defendants claimed in their motions to dismiss that the complaints were based on a flawed UC Davis study that analyzed a small sample of olive oil purchased in California and that the plaintiffs failed to either allege that the products they purchased were not EVOO as the companies claimed or that they had been harmed. The court agreed that the UC Davis results were…
The University of California, Davis, Olive Center and Australian Oils Research Laboratory have issued an April 2011 report on olive oils sold in California, concluding that 73 percent of sampled oils allegedly fell short of International Olive Council (IOC) standards for extra-virgin oil. Building on a July 2010 report, the latest results were based on two IOC-accredited sensory panels, which analyzed 134 samples from eight brands sold in three different California regions. According to the report, the two panels concluded that: (i) “Of the five top-selling imported ‘extra virgin’ olive oil brands in the United States, 73 percent of the samples failed the IOC sensory standards”; (ii) “All of the oil samples passed the IOC chemistry standards for free fatty acids (FFA), fatty acid profile (FAP) and peroxide value (PV), but several of the imported samples failed the IOC’s ultraviolet absorption (UV) tests”; (iii) “70 percent of the samples from…
According to an agricultural and food law blog, the U.S. Department of Agriculture (USDA) has published the U.S. Standards for Grades of Olive Oil and Olive-Pomace Oil, effective October 25, 2010. They supersede standards that were in effect since 1948. According to the agency, the standards “are designed to facilitate orderly marketing by providing a convenient basis for buying and selling, for establishing quality control programs, and for determining loan values. The standards also serve as a basis for the inspection and grading of commodities by the Federal inspection service.” The USDA website contains only a cached version of this document; it is unclear whether the material is undergoing some further change. See U.S. Agricultural & Food Law and Policy Blog, October 20, 2010.
