A New York appeals court has reportedly vacated a February 2016 order that stayed enforcement of New York City’s regulation requiring chain restaurants with more than 15 locations to post warning icons on menus next to items with more than 2,300 milligrams of sodium. The ruling allows enforcement to begin on June 6, 2016, with violators subject to $200 fines. The National Restaurant Association (NRA) won an emergency stay on February 29, one day before the regulation’s scheduled March 1 enforcement date. Details about the NRA’s lawsuit challenging the regulation appear in Issues 586, 595 and 596 of this Update. See Reuters, May 26, 2016. Issue 606
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Two consumers have filed a putative class action against Panera LLC involving the restaurant chain’s “2.0” ordering system using touchscreen kiosks and a “fast lane” pick-up shelf, which they allege fails to accommodate the visually impaired. Gomez v. Panera LLC, No. 16-21421 (S.D. Fla., filed April 20, 2016). The plaintiffs argue that they each visited a Florida location of Panera and found themselves “unable to enjoy the same ordering and dining experience as sighted patrons” because they were “denied the ability to independently select and purchase lunch.” The kiosks “were not designed and programmed to interface with commercially available screen reader software and further were not equipped with auxiliary aids (such as an audio interface system) for disabled individuals who are visually impaired,” the complaint alleges. The plaintiffs further argue that Panera’s website is unusable to them because it does not integrate with their screen reader programs. They seek orders…
A Florida federal court has denied Chipotle’s motion to dismiss a putative class action alleging the company misrepresents its food as free of genetically modified organisms (GMOs) despite selling meat produced from animals fed GMOs. Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., order entered April 20, 2016). Chipotle argued that the plaintiff had no standing to sue because she did not specify which products she purchased; the court found she had sufficiently pleaded her claims to support standing for her consumer-protection claims, but not her request for an injunction. Chipotle also challenged the plaintiff’s understanding of “non-GMO” as “nonsensical,” but the “reasonableness of her definition, upon which her interpretation of Chipotle’s advertisements is based, is a question better decided upon examination of the evidence,” the court held. Accordingly, it granted Chipotle’s motion to dismiss the request for injunctive relief but denied it as to the rest of…
The Seventh Circuit Court of Appeals has revived a data breach lawsuit against P.F. Chang’s China Bistro, Inc., finding that the two plaintiffs have standing to sue despite eating at a restaurant apparently not linked to the breach. Lewert v. P.F. Chang’s China Bistro, Inc., No. 14-3700 (7th Cir., order entered April 14, 2016). Additional details about the breach appear in Issue 526 of this Update. The plaintiffs ate at an Illinois location of P.F. Chang’s two months before the company announced its payment system had been hacked, revealing personal information and credit card numbers. One plaintiff noticed fraudulent charges on his card and purchased credit-monitoring services, while the other alleged that he spent time and effort monitoring his card statements and credit report. Each brought separate lawsuits, which were later consolidated then dismissed for lack of standing. Following its announcement about the data breach, P.F. Chang’s identified 33 restaurants…
The fourth edition of a Center for Science in the Public Interest (CSPI) survey has reported a 4-percent reduction in sodium across 451 packaged and restaurant foods over a 10-year period. Titled “Salt Assault: Brand-name Comparisons of Processed Foods,” the report claims that, on average, surveyed items reduced their sodium content by 41 milligrams per 100 grams of product. The consumer watchdog notes, however, that many products still have room to make additional reductions. Citing “dramatic variations in sodium content across different brands of a given food,” the report singles out products in the canned diced tomato, whole wheat bread and ketchup categories—among others—for further improvement. In particular, CSPI urges the U.S. Food and Drug Administration (FDA) and Department of Agriculture to not only set mandatory sodium limits for processed and restaurant foods, but require warning labels on those that are high in sodium. “For 40 years, the food industry has…
A consumer has filed a lawsuit alleging that Chipotle Mexican Grill Inc. falsely advertised its food as free of genetically modified organisms (GMOs) despite serving meat products from animals fed GMOs and soft drinks that contain GMO corn syrup. Pappas v. Chipotle Mexican Grill, Inc., No. 16-0612 (S.D. Cal., filed March 10, 2016). The plaintiff alleges violations of California's consumer-protection law and seeks class certification, damages, an injunction, and attorney's fees. The complaint echoes the arguments in a similar California case dismissed without prejudice in February 2016 finding that the plaintiff's definition of GMO was inconsistent. The plaintiff has filed an amended complaint arguing that consumers "reasonably understand today that such claims would mean that Chipotle's menu is 100% free of GMOs and that Chipotle does not serve food sourced from animals that have been raised on GMOs or genetically engineered food." Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952…
Great Harvest Franchising, Inc. and two franchisees of Great Harvest Bread Co. have filed a lawsuit against Panera Bread Co., alleging the company has been using a tagline—“Food as it should be”—that infringes on Great Harvest’s trademarked slogan, “Bread. The way it ought to be.” Great Harvest Franchising, Inc. v. Panera Bread Co., No. 16-0121 (W.D.N.C., Charlotte Div., filed March 10, 2016). Great Harvest established its tagline in October 2014 and registered the mark in December 2015, and it alleges that Panera began using its similar slogan in July 2015. The plaintiffs seek an injunction, destruction of infringing materials and damages for allegations of unfair competition, trademark infringement and false designation of origin. Issue 597
The day before the rule was set to take effect on March 1, 2016, a New York state appeals court reportedly granted an emergency stay on enforcement of a municipal regulation requiring chain restaurants to feature salt-warning icons on menus next to items containing 2,300 milligrams or more of sodium. A justice in the Appellate Division of the New York Supreme Court granted the emergency measure, and a panel from that court will next decide whether to grant a preliminary injunction on enforcement followed by a full appeal of the case. See Bloomberg Business, February 29, 2016. Issue 596
A consumer has filed a putative class action against The Wendy’s Co. alleging a failure to sufficiently secure customer payment card data. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., filed February 8, 2016). Wendy’s announced in late January 2016 that it had discovered in its processing systems a software program designed to steal credit and debit card information, several weeks after the plaintiff discovered that his debit card had been used in fraudulent purchases totaling almost $600. “Wendy’s could have prevented this Data Breach,” the complaint asserts. “The malicious software used in the Data Breach was more than likely a variant of ‘BlackPOS,’ the identical malware strain that hackers used in last year’s data breach at many other retail establishments. While many retailers, banks and card companies responded to recent breaches by adopting technology that helps make transactions more secure, Wendy’s has acknowledged that it has retained a security consultant to…
A California federal court has dismissed a lawsuit against Chipotle Mexican Grill Inc. alleging the company falsely advertises its food as free of genetically modified organisms (GMOs) despite selling meat and dairy produced from animals fed GMO products as well as soft drinks manufactured with GMO corn syrup. Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952 (N.D. Cal., order entered February 5, 2016). The plaintiff had failed to plausibly plead her allegations, the court found, because she failed to specify which products she purchased. Accordingly, the court granted Chipotle’s motion to dismiss but allowed the plaintiff leave to amend. Additional information about the complaint appears in Issue 577 of this Update. Meanwhile, a jury ordered Chipotle to pay $351,936 in back pay and $255,000 in punitive damages to three female former managers at restaurants near Cincinnati, Ohio, over allegations of gender discrimination. Rogers v. Chipotle Mexican Grill Inc., No. 13-0146…
