A federal court in Illinois has dismissed without prejudice a putative class action alleging consumer fraud against a company that makes snacks which list evaporated cane juice (ECJ) as an ingredient. Ibarrola v. Kind, LLC, No. 13-50377 (N.D. Ill., order entered July 14, 2014). The court declined to address whether the plaintiff had standing to assert claims as to products she had not purchased because class issues such as adequacy and typicality had not yet been briefed and further declined to consider dismissing the complaint under the primary jurisdiction doctrine, noting that the U.S. Supreme Court may have called this rationale into question in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, 2014 WL 2608859 (June 12, 2014). The court dismissed the entire complaint, however, because it failed “to plausibly and adequately alleged that [the plaintiff] was deceived by Kind’s representations.” She did not apparently “explain how she was deceived, or…
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A California federal court has dismissed a putative class action against Diamond Foods Inc. alleging that its Kettle tortilla chips are mislabeled as “All Natural” despite containing synthetic ingredients. Surzyn v. Diamond Foods Inc., No. 14-cv-136 (N.D. Cal., order entered May 28, 2014). Citing a lack of basic factual assertions such as which product was the subject of the lawsuit, the court granted plaintiff Dominika Surzyn leave to amend within 21 days. Diamond Foods argued that its “All Natural” label is not misleading within the context of the rest of the packaging, which lists some of the ingredients—maltodextrin and dextrose—at issue in the case, and cited a Federal Trade Commission (FTC) determination that consumers’ understanding of “natural” is context-specific. The court rejected Diamond Foods’ assertions, finding that FTC had reached its conclusion not to dismiss any meaning and implication of the world “natural” but to decline to offer guidance on the…
Snack maker Snyder’s Lance, Inc. has filed a motion to dismiss an amended class complaint filed by representative plaintiffs alleging that the company misleads consumers by labeling its products as “natural” when they contain genetically modified ingredients. Barron v. Snyder’s Lance, Inc., No. 13-62496 (S.D. Fla., Miami Div., motion filed March 10, 2014). Among other matters, the company argues that the plaintiffs’ “premium price” theory of harm is not plausible, they lack standing to seek injunctive relief and their failure to address their understanding of the term “natural” is fatal to their claims. As to the price theory, Snyder’s-Lance contends that the plaintiffs’ claims require the court to assume that price differences between its products and those of “rival brands” are based solely on the “natural” labeling. According to the company, the alleged price differential could be due to any number of other factors, such as better taste, more appealing…
According to a news source, the plaintiffs and defendants in litigation over a respiratory condition allegedly caused by the daily consumption of microwave popcorn containing the butter-flavoring compound diacetyl have settled the claims following a court’s reduction of the jury’s $7-million verdict to $5.78 million, including fees and costs. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo.). Additional details about the litigation appear in Issue 497 of this Update. Plaintiffs’ counsel Ken McClain reportedly indicated that the settlement terms were confidential. See Law360, February 24, 2014. Issue 515
A federal court in California has preliminarily approved the settlement of class claims that Quaker Oats violated consumer protection laws by labeling its snack bars and instant cereal products as “wholesome” with “0g Trans Fat” when they actually contain “unhealthy” ingredients, such as partially hydrogenated vegetable oils (PHOs). In re Quaker Oats Labeling Litig., No. 10-0502 (N.D. Cal., San Francisco Div., order entered February 12, 2014). Under the proposed settlement, Quaker Oats, which admits no wrongdoing, has agreed to remove PHOs from products that contain them by December 31, 2015, and will not reintroduce PHOs into these products for 10 years. The company has also agreed to not introduce PHOs into products such as Quaker Chewy bars or Instant Quaker Oatmeal products that do not contain them for 10 years, and, by December 31, 2014, will cease stating on product labels “contains a dietarily insignificant amount of trans fat” for…
A federal court in California has denied the plaintiff’s request to certify a class of those who purchased ZonePerfect Nutrition bars relying on allegedly deceptive labels representing the products as “All Natural.” Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907 (N.D. Cal., order entered February 13, 2014). The court found that the plaintiff set forth sufficient evidence to establish that she had standing for the purpose of class certification, despite paying more for other nutrition bars and sometimes purchasing non-natural products. Because the defendant “overwhelmingly sells to retailers, not directly to consumers, and . . . there are no records identifying any but a small fraction of consumers who have purchased ZonePerfect bars in the last several years,” the court, however, agreed with the defendant that neither the class nor the quantity of nutrition bars each member purchased were ascertainable other than by affidavit. As to ascertainability, the court noted a…
According to news sources, the Navajo Nation Council has approved legislation that would impose a 2-percent increase in sales taxes on so-called junk food, which, if approved by Navajo Nation President Ben Shelly, would make it the first Native American-governed territory to do so. The council also passed legislation eliminating a 5 percent sales tax on fresh produce and other healthy foods such as fruits, vegetables, nuts, and seeds. Known as the Healthy Diné Nation Act and aimed at curbing obesity and its related diseases, the legislation would increase the sales tax from 5 to 7 percent on sugar-sweetened beverages and snacks low in essential nutrients and high in salt, fat and sugar, including chips, candy, cookies, and pastries. According to some estimates, between 55 and 85 percent of the food available in grocery or convenience stores on the Navajo reservation is deemed junk food. The additional tax revenue would…
A federal court in California has dismissed a number of claims with prejudice in the second amended complaint filed on behalf of a putative class alleging that the promotion of various snack products made by Procter & Gamble Co. and Kellogg Co. is false and misleading. Samet v. Procter & Gamble Co., No. 12-1891 (N.D. Cal., order entered December 10, 2013). The complaint challenges “0g Trans Fat,” “evaporated cane juice (ECJ),” “healthy and wholesome,” and “fortification” claims for snack chips, riblets and mixed berry snacks. The plaintiffs also bring slack-fill claims that survive. The court will allow “0g Trans Fat” claims to proceed, finding the allegations sufficient, but dismissed them with prejudice as to Pringles chip products that are “reduced fat” or sold in 100-calorie packs, finding that they have “insufficient fat content to require the disclosure in question.” The court also dismissed with prejudice causes of action based on…
A federal court in California has significantly narrowed the consumer-fraud claims that may be asserted against Frito-Lay involving a number of its snack products labeled as “All Natural,” “0 Grams Trans Fat” and “No MSG.” Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered October 24, 2013). All claims dismissed were with prejudice. The court dismissed claims based on products the plaintiffs did not purchase, because they failed to specify how or whether the 85 products added in their second amended complaint were substantially similar to the purchased products. The court also dismissed any claims based on statements the company made on its website. According to the court, the Food and Drug Administration (FDA) may have warned other companies about whether their Websites constituted labeling, but it had not done so as to the defendant’s products. The court also said, “The website address appears below Defendant’s physical address,…
A California state court has denied the defendant’s request that it stay a case alleging that the company failed to warn consumers of the presence of lead in its snack bars in contravention of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Envtl. Research Ctr., Inc. v. Clif Bar & Co., No. 13-532935 (Cal. Super. Ct., San Francisco Cty., minutes entered October 16, 2013). Additional details about the suit appear in Issue 492 of this Update. Clif Bar & Co. sought the stay pending the outcome of an appeal from an August 2013 determination that Dole Food Co., Gerber Products Co. and other food makers were not required to warn consumers about lead occurring naturally in their products at levels lower than the state threshold. According to the company, it would waste time and money to proceed in a case that has already cost millions to…
