A plaintiff has filed a putative false advertising class action alleging that East West Tea Co.'s kombucha tea bags cannot feasibly be kombucha, which is a fermented product with live cultures. Cohen v. East West Tea Co., LLC, No. 17-2339 (S.D. Cal., filed November 17, 2017). The plaintiff asserts that she bought the tea product because it was labeled “organic kombucha” and expected the product to provide the health benefits of probiotic bacteria found in kombucha. The complaint argues that because kombucha is composed of fermented steeped tea, live yeast and bacterial organisms, it cannot be “dried and stuffed into a tea bag.” In addition, the complaint asserts that the company’s pasteurization process destroys the live organisms that provide kombucha’s purported health benefits. Claiming violations of California’s consumer-protection statutes and breach of express warranty, the plaintiff seeks class certification, injunctive relief, damages, corrective advertising and attorney’s fees.
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A California federal court has dismissed a lawsuit against Yakult USA at the request of the plaintiff following two denials of class certification and standing for an injunction. Torrent v. Yakult USA Inc., No. 15-0124 (C.D. Cal., S. Div., order entered August 23, 2016). Yakult argued that the court should refuse to grant the dismissal because the plaintiff was seeking to ensure appellate jurisdiction, but the court rejected that logic. “It would be inappropriate for this Court to refuse Plaintiff’s voluntary dismissal with prejudice to attempt to force Plaintiff’s continued litigation of these claims and preclude [appellate] review,” the court found. The plaintiff previously attempted to obtain standing for an injunction by purchasing Yakult again after the court told him he would be unlikely to purchase the product in the future because he believed the healthful claims of the product to be untrue. Details about the denials of certification and…
Ganeden Biotech Inc. has filed a lawsuit against American Brewing Co., Inc. and its 2015 acquisition, B&R Liquid Adventure, alleging the companies infringe its patents on a particular strain of probiotic bacteria through the marketing and sale of their búcha® beverage. Ganeden Biotech, Inc. v. Am. Brewing Co., Inc., No. 16-0876 (N.D. Ohio, filed April 13, 2016). Ganeden asserts that it holds a patent on a specific GBI-30 strain of Bacillus coagulans as used in tea and another patent on the strain as used in all other products. B&R began selling búcha® in 2013 and lists the GBI-30 strain as an ingredient, according to the complaint. “Because Ganeden holds a patent on GBI-30 and is the legitimate source of GBI-30, Ganeden believes that Defendants’ products likely contained Bacillus coagulans (which Defendants could have obtained elsewhere) but not always the GBI-30 strain as labeled,” the biotech company argues. For allegations of patent infringement and unfair…
A California federal court has again denied certification in a putative consumer class action challenging Yakult USA’s probiotic yogurt product for allegedly false digestive-health claims. Torrent v. Yakult USA, Inc., No. 15-0124 (C.D. Cal., S. Div., order entered March 7, 2016). Additional information about the previous denial of certification appears in Issue 589 of this Update. In its prior denial, the court found the plaintiff was unlikely to purchase the product again, thus he lacked standing to pursue an injunction. Following this ruling, the plaintiff purchased Yakult at a store, then refiled his motion for class certification along with a sworn declaration that “I intend to buy Yakult in California in the future.” The court found the refiled motion to be “an effort to manufacture standing in direct response to this Court’s prior ruling.” Allowing the plaintiff “to seek injunctive relief based on his recently-expressed intention to purchase Yakult in the…
A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
A New Jersey federal court has granted Gerber’s motion to compel discovery of medical records in a consumer putative class action alleging that the company misrepresented its probiotic formula as capable of improving infant immune systems. In re Gerber Probiotic Sales Practices Litig., No. 12-835 (D.N.J., order entered April 10, 2015). Gerber requested medical records for the children who ingested the products, but the plaintiffs objected that the “overly broad” request violated their rights of privacy and that the records were subject to physician-patient privilege. The court agreed with Gerber, finding “a legitimate need for medical records as there is no other source that could test the actual effectiveness of the products that claim to produce immune system health. Proof in the form of scientific studies and expert testimony may not be sufficient,” the court said, so “actual facts or the lack thereof may be essential.” Further, the medical records…
A New Jersey federal court has refused to dismiss a lawsuit alleging that Gerber falsely advertises some of its products as providing immune system boosts and as being nearly equal to breast milk. In re Gerber Probiotics Sales Practices Litig., No. 12-835 (D.N.J., order entered October 6, 2014). The plaintiffs alleged that Gerber misleadingly advertised three products—Good Start Protect Infant Formula, Good Start 2 Protect Formula for 9 through 24 months and DHA & Probiotic Cereal—as boosting immunity with an “Immuniprotect” formula that includes trademarked Bifidus BL probiotic bacteria. Gerber challenged the plaintiffs’ fourth amended complaint for lack of standing, arguing that the complaint did not allege that a named plaintiff purchased the infant formula product, but the court found that the basis for the claims was the same in that Gerber advertised each product as “scientifically advanced” and superior through the inclusion of Bifidus BL. The court agreed with Gerber’s…
A recent study examining early microbiota disruption has purportedly suggested “that antibiotic exposure during a critical window of early development disrupts the bacterial landscape of the gut, home to trillions of diverse microbes, and permanently reprograms the body’s metabolism, setting up a predisposition to obesity.” Laura Cox, et al., “Altering the Intestinal Microbiota during a Critical Developmental Window Has Lasting Metabolic Consequences,” Cell, August 2014. Researchers with New York University’s (NYU’s) Langone Medical Center apparently used low-dose penicillin (LDP) to disrupt the gut microbiota of mice in the week before birth or immediately after weaning to measure the life-long metabolic effects. The results evidently showed that mice receiving LDP in the womb and early in life had increased fat mass compared with mice that received no antibiotics at all. “When we put mice on a high-calorie diet, they got fat. When we put mice on antibiotics, they got fat,” reported lead…
Noting the difficulty of classifying products with probiotics, defined as live microorganisms that have a beneficial effect when consumed in sufficient quantities, due to their varied marketing as foods, dietary supplements, medical foods, foods for special dietary use, or drugs, University of Maryland professors in law, medicine and pharmacy suggest ways that the Food and Drug Administration (FDA) could regulate them. D.E. Hoffmann, et al., “Probiotics: Finding the Right Regulatory Balance,” Science, October 18, 2013. For example, probiotic products with drug claims “generally should be subject to the same rigorous requirements as other products making drug claims, including adequate and well-controlled investigations.” They also recommend an abbreviated approval format for “probiotic foods, dietary supplements, and dietary ingredients for which there is adequate evidence of safety in the target population; approved food additives; and substances generally recognized as safe (GRAS).” They further recommend that FDA “establish a monograph for probiotic foods…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion to centralize, for pre-trial purposes, 10 lawsuits pending in five districts against Gerber Products Co. and Nestlé USA, Inc. alleging that the companies “misleadingly advertise and market infant formulas and cereals as promoting immunity, digestive health, and visual and cognitive function because they contain probiotic cultures” and other ingredients. In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., MDL No. 2397 (JPML, decided October 16, 2012). According to the court, five of the 10 lawsuits are already consolidated in the District of New Jersey where Gerber is headquartered. One of these cases was filed in California, “thus one transferor court already has concluded that under Section 1404 the District of New Jersey is the proper venue for this litigation.” Because the defendants filed section 1404 change of venue motions in the remainder of the cases, and if all…
