A California resident has filed a putative class action on behalf of statewide and nationwide classes alleging that Safeway, Inc. labels and promotes its Open Nature waffle products as “100% Natural” while using the synthetic chemical preservative, alternatively referred to as sodium acid pyrophosphate and disodium dihydrogen pyrophosphate, as an ingredient. Richards v. Safeway, Inc., No. 13-4317 (N.D. Cal., filed September 18, 2013). According to the plaintiff, the chemical “has various applications—from its use in leather treatment to remove iron stains on hides during processing, to stabilizing hydrogen peroxide solutions against reduction, to facilitating hair removal in hog slaughter, to feather removal from birds in poultry slaughter, to use in petroleum production.” According to the plaintiff, the ingredient is not listed on the front of the package with the other ingredients. Claiming that he relied on the company’s “100% Natural” claims in purchasing products for which he paid a premium, the…
Tag Archives preservative
A federal court in California has granted in part and denied in part the motion to dismiss filed by Dole Food Co. in a putative nationwide class action alleging that the company misbrands a number of its fruit products by making certain “all natural,” “fresh,” nutrient content, antioxidant, sugar-free, and health claims, as well as failing to disclose that the products contain artificial additives, chemical preservatives and other artificial ingredients. Brazil v. Dole Food Co., No. 12-1831 (N.D. Cal., order entered September 23, 2013). According to the court, the plaintiff has standing at this stage of the proceedings to bring claims as to products he did not purchase, ruling that he may proceed with “substantially similar claims based on both products he purchased and substantially similar products he did not purchase” on behalf of unnamed class members. The court dismissed with prejudice claims based on the company’s website statements because the…
A federal court in California has issued an order preliminarily certifying a nationwide class for settlement purposes and approved the class settlement in a case alleging that Barbara’s Bakery misled consumers by labeling its products as “all natural” with “no artificial additives,” “no artificial preservatives,” or “no artificial flavors,” when they contained genetically modified (GM), artificial or synthetic ingredients. Trammell v. Barbara’s Bakery, Inc., No. 12-2664 (N.D. Cal., order filed June 26, 2013). Under the proposed terms, the company would create a $4 million non-revertible fund to pay class member claims, an incentive award for the named plaintiff, attorney’s fees, and costs of notice and administration. Class members would able to recover up to $100 for the purchase of products including cereals, cereal bars, cheese puffs, fig bars, granola bars, Snackanimal® animal cookies, organic mini-cookies, snack mixes, and crackers. The settlement would also require the company to modify the labeling and…
Three California residents have filed a putative class action against food retailer Trader Joe’s in federal court, alleging three different types of misleading labeling claims: using the terms “evaporated cane juice” or “organic evaporated cane juice,” identifying as “natural” or “no added coloring or preservatives” foods that contain added preservatives and artificial colors, and representing non-dairy calcium products as “milk.” Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., filed March 25, 2013). The plaintiffs claim that the company’s “labeling, advertising and marketing as alleged herein are false and misleading and were designed to increase sales of the products at issue. Defendant’s misrepresentations are part of an extensive labeling, advertising and marketing campaign, and a reasonable person would attach importance to Defendant’s misrepresentations in determining whether to purchase the products at issue.” The complaint outlines the applicable Food and Drug Administration (FDA) regulations that the defendant allegedly violated, noting that…
According to a news source, Whole Foods Market Inc. is seeking to stop its deposition in consumer fraud litigation filed against Skinny Girl Cocktails LLC, arguing that it does not own or operate Whole Foods retail stores nor does it “decide which suppliers, food brokers or distributors are to be used by Whole Foods Market retail locations.” Greene v. Skinny Girl Cocktails LLC, 12-550 (W.D. Tex., motion to quash filed June 22, 2012). A number of putative class actions alleging that the defendants falsely market margaritas as “all natural” were filed in district courts around the country after Whole Foods stores pulled the product from their shelves upon learning that it contains sodium benzoate as a preservative. An effort to have the actions consolidated before a multidistrict litigation court failed; additional details about that ruling appear in Issue 422 of this Update. See Law360, June 25, 2012.
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has proposed new traceback measures to better control and prevent pathogens from triggering foodborne illnesses and outbreaks. Particularly concerned with meat contaminated with Escherichia coli (E. coli), FSIS plans to “move quickly to identify the supplier of the product and any processors who received contaminated product from the supplier, once confirmation is received.” FSIS, which has provided industry guidelines on the matter, requests comments by July 6, 2012. See FSIS Press Release, May 2, 2012; Federal Register, May 7, 2012. FSIS has also issued a proposed rule that would remove the food preservatives sodium benzoate, sodium propionate and benzoic acid from a list of substances prohibited for use in meat or poultry products. Under the proposal, the Food and Drug Administration would continue to approve new safety uses of these substances in meat or poultry products while FSIS would approve them for…
According to news sources, the Center for Food Safety, which lost its challenge to the U.S. Department of Agriculture’s (USDA’s) decision to deregulate without restriction genetically engineered (GE) alfalfa, plans to appeal the matter to the Ninth Circuit Court of Appeals. A federal court in California determined on January 5, 2012, that the law does not require the agency to “account for the effects of cross-pollination on other commercial crops” in assessing whether a new crop poses risks. U.S. District Judge Samuel Conti also reportedly said that USDA lacks the authority to require a buffer zone between GE crops and conventional or organic crops. Noting that the Environmental Protection Agency (EPA) has approved the use of glyphosate on Roundup Ready® alfalfa, Conti further observed, “If plaintiffs’ allegations are true, then it is disturbing that EPA has yet to assess the effects of glyphosate on most of the species found near…
George Washington University Law Professor John Banzhaf has issued a press release highlighting recent action the Food and Drug Administration took against a food company that purportedly misbrands one of its products by declaring it “All Natural” while making the product with a synthetic chemical preservative ingredient. According to Banzhaf, the agency’s warning letter is “likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law professor whose earlier movement to use legal action as a weapon against obesity apparently inspired these new legal actions.” He claims that The American Lawyer recognized how he started this litigation movement, noting in an article that he used the courts to address obesity, “just as he had earlier done in leading the use of legal action as a weapon against smoking.” Banzhaf further states, “The movement which Banzhaf started…
A putative class action has been filed in a federal court in California against Beam Global Spirits & Wine, Inc., alleging that the company’s Skinnygirl™ Margarita beverage, purportedly created by a natural foods chef, contains sodium benzoate and other preservatives and should not be advertised and sold as a “natural” product. Bonar v. Beam Global Spirits & Wine, Inc., No. ___ (S.D. Cal., filed September 6, 2011). Alleging purely economic damages, the plaintiff seeks to certify a nationwide class of purchasers and claims that the company has violated California’s Consumers Legal Remedies Act and Business & Professions Code Section 17200 et seq., and breached express warranties. She requests compensatory and punitive damages, restitution, disgorgement, corrective advertising, injunctive relief, attorney’s fees, and costs.
The Food and Drug Administration (FDA) has issued a warning letter to Chiquita Brands International, Inc. indicating that the company is violating the Federal Food, Drug, and Cosmetic Act by misbranding several of its pineapple products. According to FDA, because Pineapple Bites with Coconut® is made with a coconut-flavored spray, the product’s statement of identity and ingredient statement are false and misleading and should instead be identified as containing “coconut flavor.” The labeling also apparently states that the product contains antioxidants but does not include the names of the nutrients that are the subject of the claim. FDA further contends that the products include the claim “Plus Phytonutrients.” Because no recommended daily intake or daily recommended value has been established for phytonutrients, such nutrient content claims are not authorized, according to the agency. The products also apparently include the statement “Only 40 calories,” which FDA says implies that the products…
