Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
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A U.K.-based public interest charity has filed 54 separate complaints with the Advertising Standards Authority (ASA) contending that the subject companies, including Cadbury and Pringles, are promoting food products high in sugars, fat or salt to children online. Described by the Children’s Food Campaign (CFC) as a “super complaint,” the case reflects the findings of a report the charity released in December 2011 claiming that food advertisers use brand characters, animations, games, competitions, and videos online and through social media to heavily market junk food to children. It calls for the U.K. government to close a loophole allowing ads for products that cannot be aired during children’s programming to be freely promoted online. According to CFC spokesperson Malcolm Clark, youth marketing standards applicable to TV should be matched online. The existing code apparently states, “marketing communications must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children.”…
A New York resident has reportedly filed a putative class action in federal court, alleging that Frito-Lay misleads consumers by promoting its snack products as “all natural” when they actually contain corn and oils made from genetically engineered (GE) plants. Shake v. Frito-Lay N. Am., Inc., No. 12-408 (E.D.N.Y., filed January 30, 2012). Similar litigation was filed in December 2011 in California. Details about that case appear in Issue 421 of this Update. According to a news source, plaintiff Chris Shake alleges that he paid an additional 10 cents per ounce of Tostitos® and SunChips® over other comparable products and would not have done so had he known that the defendant’s products are not made with “all-natural ingredients.” A company spokesperson was quoted as saying that the product labeling “complies with all regulatory requirements.” Shake reportedly alleges damages in excess of $5 million. See Reuters, January 30, 2012.
A California resident who claims economic injury from purchasing Frito-Lay snack and chip products advertised as “All Natural” while allegedly containing genetically engineered (GE) corn and vegetable oil seeks to certify a nationwide class in a consumer fraud action filed in a California federal court. Gengo v. Frito-Lay N. Am., Inc., No. 11-10322 (C.D. Cal., filed December 14, 2011). According to the complaint, the company’s tortilla chips, sun chips and multigrain snacks are prominently labeled as “made with ALL NATURAL ingredients.” Because they are instead purportedly made with corn, soybean and canola oils “made from genetically modified plants and organisms,” the plaintiff contends that “she did not get the ‘all natural’ Tostito's and SunChip’s products that were advertised and she paid for.” Alleging violations of the California Business & Professions Code (misleading advertising and unfair competition) and Consumers Legal Remedies Act, breach of express warranty, and violation of the Magnuson-Moss…
General Nutrition Centers Inc. and the company that makes 2:1 Protein Bars® have settled class claims filed in California alleging that the companies misbranded four flavors in the product line by “allegedly overstat[ing] their protein content and understat[ing] their sugar and carbohydrate content.” Cagle v. Anti-Aging Essentials, Inc., No. 11-02940 (C.D. Cal., motion for preliminary approval of proposed settlement filed October 17, 2011). While the companies apparently reformulated the bars and labels before the lawsuit was filed, they have agreed to comply with federal labeling laws in the future and to provide three free protein bars to class members who have been identified through online purchase records or their use of customer loyalty cards. Consumers who can prove their purchases with receipts will receive free replacement bars under the proposed settlement, if the court approves it. Consumers without proof of purchase would be able to receive buy-one-get-one free coupons for…
The Center for Science in the Public Interest (CSPI) is representing a California woman who has sued General Mills, Inc. on behalf of a putative nationwide class of consumers who purchased the company’s Fruit Roll-Ups®, Fruit by the Foot® and Fruit Gushers® products, claiming that the company deceptively markets them as healthy and wholesome. Lam v. General Mills, Inc. No. 11-5056 (N.D. Cal., filed October 14, 2011). According to CSPI, “General Mills is basically dressing up a very cheap candy as if it were fruit and charging a premium for it.” Product labeling purportedly refers to the snacks as “fruit flavored,” “naturally flavored,” “good source of Vitamin C,” “low fat,” and “gluten free.” The complaint alleges that these claims are misleading because the snacks actually contain trans fat, added sugars, and artificial food dyes. The plaintiff also alleges that the products lack “significant amounts of real, natural fruit” and have no…
The Seventh Circuit Court of Appeals has dismissed with prejudice consumer protection claims filed against two companies that make snack bars with extra fiber, finding the claims preempted under federal law. Turek v. General Mills, Inc., No. 10-3267 (7th Cir., decided October 17, 2011). According to the court, “The disclaimers that the plaintiff wants added to the labeling of the defendants’ inulin-containing chewy bars are not identical to the labeling requirements imposed on such products by federal law, and so they are barred.” The plaintiff had sought the inclusion of information on chewy bar product labels indicating that inulin derived from chicory root “produces fewer health benefits than a product that contains only ‘natural’ fiber,” and that “inulin from chicory root should not be consumed by pregnant or lactating women.” Additional details about the complaint and the district court’s ruling dismissing the claims appear in Issues 327 and 364 of…
California residents have filed a putative class action in federal court against a company that promotes its granola, cookie and trail mix products as “100% Pure and Natural,” despite making them with some purportedly synthetic ingredients. Thurston v. Bear Naked, Inc., No. 11-4678 (N.D. Cal., filed September 21, 2011). Seeking to represent a nationwide class of consumers, the plaintiffs allege that they would not have purchased the defendant’s products at a premium price if they had known that “synthetic ingredients were used in the product.” According to the complaint, the company’s products contain cocoa processed with alkali, glycerin and lecithin. The plaintiffs allege unlawful, unfair and fraudulent business practices and false advertising under California law; violation of the Consumers Legal Remedies Act; and restitution based on quasi-contract/unjust enrichment. They seek restitution, compensatory and punitive damages, injunctive relief, attorney’s fees, costs, interest, and “[a]n order requiring an accounting for, and imposition of,…
Seeking to represent a nationwide class of consumers, a California resident has filed a consumer fraud class action against the Balance Bar Co., challenging its “All Natural” claims in light of product ingredients such as ascorbic acid, cocoa (processed with alkali), glycerine, sodium citrate, and xanthan gum. Sethavanish v. Balance Bar Co., No. 11-4547 (N.D. Cal., filed September 13, 2011). She claims that she purchased different Balance Bar products since 2007 relying on the “All Natural” representations and paying more for the products “than she would have had to pay for other products that were not all natural.” In her complaint, she notes that the Food and Drug Administration does not regulate the term “natural,” but contends that the agency “has established a policy defining the outer boundaries of the use of that term by clarifying that a product is not natural if it contains color, artificial flavors, or synthetic…
The Food and Drug Administration (FDA) has warned the company that makes Lazy Larry® brownies containing melatonin that they are adulterated under federal law. According to FDA, “Your ‘Lazy Larry’ product is represented for use as a conventional food, and accordingly is not a dietary supplement.” The company apparently uses the term “dietary supplement” in the product’s “statement of identity” and a “Supplement Facts” panel for its nutrition labeling. FDA contends that these statements do “not make your product a dietary supplement,” because it is marketed alongside snack foods, its website refers to the product as a conventional food, and the appearance and packaging make the product look like a brownie. Noting that the agency “is not aware of data to establish the safety of melatonin for use as an ingredient in conventional foods” and that “reports in the scientific literature have raised safety concerns about the use of melatonin,” FDA…
