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Kilwins Quality Confections Inc. sold chocolate and other candy products in containers that "materially overstate the volume of the contents," according to a plaintiff. Rand v. Kilwins Quality Confections Inc., No. 21-1513 (N.D. Ill., E. Div., filed March 18, 2021). The consumer argues that the company's shredded-chocolate containers "materially overstate the actual volume of, and the number of servings contained in, the containers and packaging in which they are advertised and sold and similarly materially understate the caloric content of a serving." The jars of chocolate were labeled as containing 20 servings of two tablespoons despite containing only 16 servings of that size, the plaintiff argues, and the caloric content of one serving is 140 calories rather than 110 calories as listed on the package. "While Kilwins has recently quietly corrected labeling on the mislabeled products, it has failed to compensate thousands of consumers who, over the three (3) to…

A New York federal court has dismissed a lawsuit against Oregon Chai Inc. for failure to state a claim in litigation centered on whether using the term "vanilla" on packaging is misleading to consumers. Cosgrove v. Oregon Chai Inc., No. 19-10686 (S.D.N.Y., entered February 22, 2021). "In the past two years, counsel for Plaintiffs [] has filed numerous class action complaints across the country, including several in this District, challenging food manufacturers’ use of the term 'vanilla' in their descriptions or advertising," the decision begins. "In nearly all of these cases, the district court ultimately found that the plaintiffs had failed to state a viable claim for relief. This time, Plaintiffs challenge Defendant Oregon Chai, Inc. [], claiming that Defendant’s use of the term 'vanilla' and other statements on the packaging of its chai tea latte powdered mix is misleading to consumers. As set forth in the remainder of this Opinion,…

A California federal court has approved the settlement of a lawsuit alleging Post Foods LLC misrepresented the nutritional value of its cereals because of the added sugar content. Krommenhock v. Post Foods LLC, No. 16-4958 (N.D. Cal., entered February 24, 2021). Under the settlement agreement, Post will pay $15 million to the nationwide class and remove phrases related to nutritional benefits on its packaging if more than 10% of the cereal's calories per serving come from added sugar.

A plaintiff has filed a putative class action alleging Demoulas Super Markets Inc. includes representations on its Market Basket coffee indicating that the tins hold 76 to 79 cups of coffee but only contain 37 to 39 cups when prepared according to the label's instructions. Cohen v. Demoulas Super Mkts. Inc., No. 21-10177 (D. Mass., filed February 2, 2021). "This means that consumers of the Products, including Plaintiff, were cheated out of 51% of the servings they paid for, in both cases, based on the advertising, marketing, and labeling of the Products," the complaint asserts. The plaintiff alleges claims of unjust enrichment as well as breach of express warranty and untrue and misleading advertising under Massachusetts General Laws.

Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.'s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text "Traditional Icelandic Skyr" and photos of an Icelandic countryside, "gives consumers the belief it is made in Iceland," the complaint asserts. Although the back of the package indicates that the product is "made in Batavia, NY with domestic and imported ingredients," the plaintiffs allege they "relied upon the representations and indications of the Product's origins - literally and figuratively - in Iceland, and desired to purchase such a product." Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania's consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney's fees.

New Jersey Governor Phil Murphy has reportedly signed a law banning single-use plastic and paper bags and imposing limits on other food containers and straws. Effective May 2022, the law will ban the use of polystyrene food and drink containers, and single-use plastic straws may only be provided upon request beginning in November 2021. Some products will be exempt until 2024, including meat and fish trays, food prepackaged in polystyrene by the manufacturer, polystyrene soda spoons used for thick drinks and portion cups for foods requiring a lid.

A group of consumers has filed a putative class action asserting that Nestle USA Inc. and Ferrara Candy Co.’s opaque candy boxes contain too much slack fill. Iglesia v. Nestle USA Inc., No. 20-5971 (D.N.J., filed May 15, 2020). The complaint alleges that Ferrara and Nestle “pioneered a scheme to deceptively sell candy in oversized, opaque boxes that do not reasonably inform consumers that they are half empty. Defendants’ ‘slack-fill’ scam dupes unsuspecting consumers across America to pay for empty space at premium prices.” The complaint also features several photos of boxes with portions cut away, purportedly showing the amount of empty space in an unopened package. For alleged violations of New York, New Jersey, Michigan, Illinois, North Carolina, Texas and Florida consumer-protection statutes, the plaintiffs seek an injunction, restitution, 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."

U.S. Rep. Debbie Dingell (D-Mich.) has introduced legislation that would "ban the use of toxic perfluorinated compounds (PFAS) in food containers and cookware." The Keep Food Containers Safe from PFAS Act would give the U.S. Food and Drug Administration authority to deem PFAS chemicals in food containers as unsafe by 2022. “We already know the double cheeseburger and fries are not the most healthy meal, but no one suspects the dangerous chemicals seeping into your food from the wrapper or food containers," Dingell is quoted as saying in a press release. "This important legislation ensures unsafe, hazardous chemicals are not allowed near the food we eat.”

The National Toxicology Program, part of the Public Health Service of the U.S. Department of Health and Human Services (HHS), has issued for peer review a draft research report of a two-year study of the effects of bisphenol A (BPA) on rats. According to a press release issued by the U.S. Food and Drug Administration (FDA), the study was conducted by senior scientists at FDA’s National Center for Toxicological Research as part of a collaborative effort by FDA and the National Institutes of Health to investigate concerns about possible developmental effects of relatively low exposure to BPA. FDA reports that it found “minimal effects” of BPA on rats but identified areas that “may merit further research, such as the increase in occurrence of mammary gland tumors at one of the five doses.” FDA also noted that its “comprehensive review” of the report supports the agency’s determination that currently authorized uses…

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