A Florida federal court has granted in part and denied in part a motion to dismiss a putative class action alleging that Snyder’s-Lance, Inc. misleadingly labels its pretzels and chips as “natural” despite containing “unnatural genetically-modified organisms (‘GMOs’) and, in many cases, other unnatural artificial and synthetic ingredients.” Barron v. Snyder’s-Lance, Inc., No. 13-62496 (S.D. Fla., order entered March 20, 2015). The court first found that the plaintiffs sufficiently pled economic harm because they paid a premium price based on the “natural” representation on the labels; requiring them to compare rival products on the dates and at the locations that the plaintiffs purchased Snyder’s-Lance products would be “both impractical and impracticable. Unsurprisingly, it is also unsupported by law,” the court said. Summarizing precedent on the issue, the court then determined that the plaintiffs offered enough of a definition of “natural” to survive the pleadings stage. The plaintiffs’ allegation “that a reasonable…
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A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
A consumer has filed a putative class action in Florida federal court alleging that LesserEvil LLC falsely advertises its Chia Crisps as containing “a significant amount of chia seeds, when, in actuality, the Product is primarily composed of black beans, a less expensive ingredient.” Crane v. LesserEvil LLC, No. 14-62854 (S.D. Fla., filed December 16, 2014). The plaintiff asserts that LesserEvil attempted to capitalize on increasing consumer demand for antioxidant-rich chia seeds by creating a black-bean product with an insignificant amount of the seeds and advertising it as a chia-seed product. She alleges unjust enrichment and a violation of the Florida Deceptive and Unfair Trade Practices Act; she seeks class certification, compensatory damages, restitution, an injunction, and attorney’s fees. Issue 549
In a 10-4 vote, the Navajo Nation Council has approved a tax on “junk” foods sold on the largest reservation in the United States. If President Ben Shelly signs the measure into law, the Healthy Dine Nation Act of 2014 would apply to items like cookies, chips and soft drinks, and the revenue generated would be directed to a fund supporting farmers markets, the planting of vegetable gardens, purchase of exercise equipment, and other health-focused projects. Shelly evidently vetoed similar legislation earlier in 2014, reportedly saying that he supported the goals of the tax initiative but questioned its implementation. Proponents of the tax reportedly cite the high rates of diabetes among American Indians and Alaska Natives—the highest among U.S. racial and ethnic groups—as the main reason to pass the legislation. See Associated Press, November 15, 2014. Issue 546
A Florida resident has filed a putative statewide and nationwide class action against the Snack Factory, LLC, alleging that it deceptively represents that its Pretzel Crisps are “All Natural” despite including “unnatural, synthetic, and/or artificial ingredients, including but not limited to maltodextrin and soybean oil.” Seidman v. Snack Factory, LLC, No. 14-62547 (S.D. Fla., filed November 7, 2014). The plaintiff asserts claims as to a number of flavor varieties, some of which also contain the “unnatural” ingredients dextrose and caramel color. The plaintiff contends that he and class members paid a price premium for the product “over and above other comparable products that do not claim to be ‘All Natural,’” relying on the product labels to their economic detriment. The complaint specifies in what way the ingredients are not natural, including that some are derived from genetically modified organisms. Alleging violation of Florida’s Deceptive and Unfair Trade Practices Act, negligent misrepresentation, breach…
Diamond Foods, Inc. has agreed to settle the consumer fraud class action suits filed by plaintiffs in California and Florida alleging that the company falsely labels its Kettle Brand® chip products as “All Natural,” when they contain artificial, synthetic or genetically modified ingredients, or as “Reduced Fat” while referencing non-comparable foods. Klacko v. Diamond Foods, Inc., No. 14-80005 (S.D. Fla., motion for preliminary approval filed October 22, 2014). Details about one of two similar California lawsuits appear in Issue 510 of this Update. Under the agreement, the company would establish a $2.75-million fund for class member claims, pay the costs of class notice and administration up to $300,000 and agree not to oppose attorney’s fees, expenses and costs of $775,000. Class members with proof of purchase would be able to recover up to $20, representing $1.00 for up to 20 purchases; those without proof of purchase would recover up to $10.…
The Center for Science in the Public Interest (CSPI) has released a report claiming that candy, energy bars, chips, and cookies constitute 90 percent of foods marketed in store checkout lanes, while sugar-sweetened beverages constitute 60 percent of the beverage options. According to the study, which examined 30 retailers in the Washington, D.C., area, 86 percent of non-grocery retailers displayed foods and/or beverages in checkout aisles, but only one food store abstained from marketing foods or beverages at the point of sale. In addition, the one retailer with a designated “family-friendly” aisle still marketed allegedly unhealthy foods and beverages in amounts and percentages similar to those found in regular checkout lanes. Arguing that such practices promote obesity, the consumer watchdog is urging retailers to set “nutrition standards for their checkout offerings” by limiting the amount of calories, saturated and trans fats, added sugars, and sodium in food and beverage options. “In…
A California federal court has dismissed several of the plaintiffs’ claims in a putative class action accusing Frito-Lay North America Inc. of mislabeling its Rold Gold pretzels as “low fat,” “fat free” or “all-natural” despite allegedly containing high sodium levels and unnatural ingredients. Figy v. Frito-Lay North America Inc., No. 13-3988 (N.D. Cal., order entered August 12, 2014). The court found that the plaintiffs had standing to sue on behalf of purchasers of several non-purchased products because Frito-Lay’s health claims were the same for each and the only difference was the shape of the pretzel products. The court then dismissed several of the plaintiffs’ claims. It found that it did not have subject matter jurisdiction to grant injunctive relief because Frito-Lay had triggered the plaintiffs’ obligation to prove jurisdiction by submitting declarations and extrinsic evidence of the plaintiffs’ lack of standing to seek an injunction, and the plaintiffs had then failed to…
A federal court in California has granted in part the motion to dismiss filed by Diamond Foods, Inc. in a putative class action alleging that the company misleads consumers by claiming that its Reduced Fat Sea Salt Chips are “40% reduced fat potato chips” and its Backyard Barbecue Chips are “All Natural,” as well as making false and deceptive statements in the company’s “promotional materials” and on its “website.” Hall v. Diamond Foods, Inc., No. 14-2148 (U.S. Dist. Ct., N.D. Cal., order entered July 31, 2014). An amended complaint, if any, must be filed by August 15, 2014, and the case management conference will be held on October 31. The court dismissed the reduced fat claims finding them insufficiently pleaded because it was unclear whether the plaintiff read only the statement on the front of the bag, in which case he “would lack standing to argue the statements on the…
A California federal court has granted the plaintiffs’ request to dismiss their entire action with prejudice in a case accusing Gruma Corp. of labeling its Mission Restaurant Style tortilla chips as “all natural” despite containing genetically modified corn. Cox v. Gruma Corp., No. 12-6502 (N.D. Cal., order entered July 25, 2014). The plaintiffs’ stipulation to dismiss did not indicate whether the parties reached a settlement agreement. In the 2012 complaint, the plaintiffs alleged that Gruma violated state consumer protection laws like the Consumer Legal Remedies Act due to its alleged mislabeling; in July 2014, they debated Gruma’s motion to dismiss, in which the corporation argued that a reasonable customer would not have been misled by their labels, the complaint’s claims infringed the First Amendment, the plaintiffs failed to plead their fraud claims with the particularity required, and the court lacked jurisdiction to issue an injunction. Additional information on the case appears…
