A consumer has filed a putative class action against Unilever U.S., PepsiCo and the Pepsi Lipton Tea Partnership alleging that their line of Pure Leaf® Iced Teas are misleadingly labeled as “All Natural” and preservative-free because they contain citric acid, a synthetic ingredient. Ren v. Unilever U.S., Inc., No. 156463/2015 (N.Y. Sup. Ct., filed June 26, 2015). The complaint asserts that Pure Leaf® labels indicate that the products are natural and contain no preservatives despite containing citric acid, which is “industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger.” The companies use citric acid as a preservative, the complaint argues, and it disputes the accuracy of a note in the ingredient list explaining that citric acid provides tartness. The plaintiff seeks class certification, declaratory judgments, damages, restitution, an injunction, and attorney’s fees for allegations of unjust enrichment, breach of warranties, negligent misrepresentation and violations…
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A New Jersey federal court has again denied class certification to a trio of women suing Beam Global Spirits & Wine for allegedly misrepresenting Skinnygirl® Margaritas as using “only natural ingredients” despite containing sodium benzoate. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J., order entered June 8, 2015). Details about the court’s previous examination of certification appear in Issue 529 of this Update. The plaintiffs argued that the class could be ascertained through a three-level screening process designed to limit the number of fraudulent claims. The process would require potential claimants to provide a (i) claim form and receipt for the purchase of the product or (ii) a sworn affidavit with the dates, locations and prices of their Skinnygirl® Margarita purchases as well as a description of the bottle. In the latter case, the screeners would then check the potential claimants’ affidavits for accuracy to determine, for…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015). The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.” The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products…
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
An Environmental Working Group (EWG) investigation has reportedly concluded that 49 processed snack foods contain propylparaben, a preservative commonly found in cosmetic products. In light of its findings and various studies allegedly linking exposure to the chemical to decreased fertility and other hormone-related issues, EWG is urging the U.S. Food and Drug Administration to reconsider the preservative’s current “Generally Recognized as Safe” status as a food additive. “It is of great concern to us that the use of an endocrine-disrupting chemical in our food is considered safe by our own government,” Johanna Congleton, an EWG senior scientist was quoted as saying. “European Union regulators do not permit propyl paraben in food. So why do we?” EWG is soliciting concerned consumers to sign an online petition to food companies that states: “Your company uses the endocrine-disrupting chemical propylparaben in your products! Parabens are being taken out of some cosmetics and food products,…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show "The Real Housewives of New York City" and talk show "Bethenny," was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014). The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not…
The Environmental Working Group (EWG) has released a database and mobile app that score some 80,000 food products using three criteria—nutrition, ingredient concerns and processing—to inform consumers that “popular brands in many categories are not so much food as they are conveyances for excessive amounts of sugar, salt and preservatives.” According to an October 27, 2014, EWG press release, the average product rated in the Food Scores database contains 14 ingredients and 446 mg of salt per 100 g, and it has a 58 percent chance of containing added sugar, 46 percent chance of artificial or natural flavor and 14 percent chance of artificial coloring. The guide allows consumers to search by product name, company or category and provides examples of comparable products with different scores. EWG’s press release specifically calls out stuffing and stuffing mixes as products with the highest likelihood of containing added sugars. According to Bloomberg Businessweek,…
A federal court in California has certified a nationwide class of consumers as to the injunctive relief requested in litigation against Dole Packaged Foods regarding its labeling claims that certain fruit products are “All Natural” despite the presence of ascorbic acid and citric acid, but limited the damages class to California consumers and the number of products at issue. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered may 30, 2014). Dismissed with prejudice were Dole products and label statements in the second amended complaint for which the named plaintiff did not move for class certification. An earlier ruling narrowing the claims is discussed in Issue 498 of this Update. Among other matters, the court disagreed with Dole’s argument that the class could not be ascertained because company records identifying purchasers or the products they purchased do not exist and further…
