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Utz Quality Foods Inc. has agreed to pay $1.25 million to settle a putative class action alleging that some products were labeled “natural” despite containing genetically modified organisms (GMOs) and synthetic ingredients. DiFrancesco v. Utz Quality Foods, Inc., 14-14744 (D. Mass., settlement agreement filed December 6, 2017). The complaint alleged the snacks contained GMO grains and synthetic ingredients such as caramel color, malic acid and citric acid. Class members will receive $2 for each qualifying purchase up to a total of $20 and residual funds will be paid to nonprofit group Consumers Union. Utz has also agreed to stop using the terms “natural” and “all natural” on labeling and advertising of the products.

A consumer has filed a putative class action alleging Whole Foods Market Group Inc. charged him $1.29 for snack bars despite advertising them as $1.00 each. Alston v. Whole Foods Mkt. Grp. Inc., No. 17-2580 (D.D.C., removed to federal court December 4, 2017). The plaintiff alleges that he purchased snack bars over several visits to a Whole Foods store in Washington, D.C., but did not notice until later that he had been overcharged. The complaint asserts that Whole Foods “calculated that most consumers would not notice the 29 cents overcharge, would not bother to say anything after they noticed the overcharge or that they would simply refund the overcharge if a customer requested a refund.” Claiming violations of the District of Columbia Consumer Protection Procedures Act and fraud, the plaintiff seeks class certification, damages, a $25,000 incentive award and attorney’s fees.

A federal court in New York has given final approval to the settlement of multidistrict litigation that alleged Frito-Lay North America, Inc. deceptively labeled and marketed its chip and dip products as “Made with All Natural Ingredients” when the products contained genetically modified ingredients. Frito-Lay N. Am., Inc., “All Natural” Litig., No. 12-MD-2413 (E.D.N.Y., entered November 14, 2017). Frito-Lay has agreed to modify its product labeling. While the class will not receive damages apart from $17,500 to class representatives, plaintiff's counsel will receive $1.9 million plus reimbursement of expenses up to $200,000.

Snyder’s-Lance, Inc. has filed a lawsuit in North Carolina federal court appealing a Trademark Trial and Appeal Board (TTAB) ruling that found the term “Pretzel Crisps” to be generic, arguing that TTAB “failed to consider all the evidence of the public’s perception of the Pretzel Crisps brand, despite clear direction from the Federal Circuit to do so.” Snyder’s-Lance, Inc. v. Frito-Lay N. Am., Inc., No. 17-0652 (W.D.N.C., filed November 6, 2017). TTAB initially deemed “pretzel crisps” generic after Frito-Lay opposed Snyder's-Lance’s application for a trademark; that decision was vacated by the Federal Circuit and remanded for reconsideration. Snyder's-Lance argues that during seven years of litigation, its Pretzel Crisps brand has become a market leader and is now the “number one product in the entire ‘deli cracker’ section in which it principally competes." The complaint also asserts that “both Frito-Lay and the TTAB panel agreed that ‘pretzel crackers’ generically and appropriately…

Researchers at the University of Surrey have evaluated the impact of "snack" labeling compared to "meal" labeling, reportedly finding that those who ate products labeled as snacks consumed “significantly more in terms of nearly all measures of food intake than those in the other conditions.” J. Ogden et al., “'Snack' versus ‘meal’: The impact of label and place on food intake,” Appetite, October 23, 2017. Eighty female subjects ate food labeled or presented as either (i) a snack to be consumed standing or eaten from a container or (ii) a meal to be eaten from a plate at a table. The research reportedly showed that subjects consumed “significantly more” chocolate and more total mass and calories when the food was labeled as a snack. The authors concluded that “label and presentation influence subsequent food intake both independently and combined which is pertinent given the increase in ‘snacking’ in contemporary culture.”

A Bengali potato-chip maker’s application to register a design mark has drawn opposition from Frito-Lay, which argues the mark is too similar to the one it has used since 1995. Frito-Lay N. Am. v. Putul Distribs., No. 91235606 (T.T.A.B., notice of opposition filed July 17, 2017). The notice asserts that Putul’s proposed design mark for its fish, pickles and potato chips—a green and red circle bisected by a wide red and black ribbon—is likely to be confused with Frito-Lay’s, which is a “round sun or globe bisected by a banner or ribbon.” In addition to the alleged potential confusion between the marks on potato-chip products, Frito-Lay also asserts that fish and pickles are “food products that may be complementary or consumed with Frito-Lay’s goods.” Claiming priority, likelihood of confusion and dilution by blurring, Frito-Lay seeks a denial of Putul's registration application.   Issue 643

A Texas man alleges the tortilla chips provided for his food demonstrations were rancid and adulterated with a salt shaker and a dirty napkin, threatening his business relationships and causing him emotional distress. Henry’s Dream Distrib. v. El Matador Foods, No. 2017-46884 (Tex. Dist. Ct., Harris Cty., filed July 14, 2017). The plaintiff asserts that in two separate incidents related to tortilla chips he purchased from El Matador Foods, a salt shaker rolled out of a bag at a sales demonstration and a dirty napkin was found in a bag that held rancid chips. According to the complaint, the plaintiff suffered a stroke after the second event. Claiming breach of contract, negligence, breach of warranty, negligent misrepresentation and violations of Texas consumer protection law, the plaintiff seeks damages and attorney’s fees.   Issue 641

The makers of Sensible Portions Garden Veggie Straws face a proposed class action alleging the company misrepresented the vegetable content and nutritional value of the product. Solak v. Hain Celestial Grp., No. 17-0704 (N.D.N.Y., filed June 29, 2017). The plaintiffs assert that Garden Veggie Straws are marketed as containing “garden grown potatoes [and] ripe vegetables” and display tomatoes, potatoes and spinach on the packaging, but the first ingredients listed are “potato starch, potato flour, corn starch, tomato paste and spinach powder.” In addition, the plaintiffs assert that while tomatoes and spinach are “excellent sources” of vitamins A and C, Garden Veggie Snacks contain no vitamin A and only two percent of the recommended daily amount (RDA) of vitamin C. The complaint further alleges that the snacks are advertised as containing 30 percent less fat than “the leading potato chip," but a single serving of Lay’s Classic potato chips apparently contains…

A California couple has filed two putative class actions alleging that the makers of Lay’s® and Pringles® salt-and-vinegar flavored chips mislabel and deceptively advertise their products, leading customers to believe the chips are naturally flavored when they actually contain artificial chemical flavorings. Allred v. Kellogg, No.17-1354 (S.D. Cal., removed to federal court July 5, 2017); Allred v. Frito-Lay N. Am., No. 17-1345 (S.D. Cal., removed to federal court July 3, 2017). In both suits, the plaintiffs claim the manufacturers label and advertise the potato snacks “as if [they] were flavored only with natural ingredients” and as containing “no artificial flavors.” The plaintiffs allege that although both products contain “actual vinegar—but in an amount too small to flavor the product,” the chips’ vinegar flavors are artificial. The Lay’s® complaint alleges that the label states the product contains malic acid; although l-malic acid can be found naturally in fruits and vegetables, the plaintiffs…

A proposed slack-­fill class action against Harry & David LLC was dismissed after the parties voluntarily dismissed the action. Brown v. Harry & David LLC, No. 17-­0999 (S.D.N.Y., stipulation filed May 22, 2017). The stipulation did not explain the reason for dismissal but stipulated that it was dismissed “with prejudice against the Defendant.” The plaintiff had alleged that 10­-ounce containers of Moose Munch Milk Chocolate, Dark Chocolate, Classic Caramel and Cinnamon Maple Pecan popcorn mix were underfilled by as much as 43 percent.   Issue 636