Calling it “ridiculous to say that consumers would expect snack food ‘made with real fruit’ to contain only ‘actual strawberries or raspberries,’ rather than these fruits in a form amenable to being squeezed inside a Newton,” a federal court in California has dismissed without leave to amend consumer fraud claims against the company that makes Nabisco strawberry and raspberry Newton cookies. Manchouck v. Mondeléz Int’l Inc., No. 13-2148 (N.D. Cal., decided September 26, 2013). The court determined that the plaintiff had Article III standing without alleging physical injury because this is not the sole measurement of injury-in-fact and the plaintiff alleged that she had paid a premium price for the products which she would not have purchased “at that price point absent the alleged misstatements.” The court agreed with the defendant, however, that the plaintiff had failed to meet the plausibility pleading standard set forth in Ashcroft v. Iqbal, 556 U.S.…
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California residents have filed a putative nationwide class action against Late July Snacks LLC, alleging that the company’s snack products are misbranded because they include “organic evaporated cane juice” on their ingredient lists in violation of the state’s Sherman law, which incorporates the federal Food, Drug, and Cosmetic Act. Swearingen v. Late July Snacks LLC, No. 13-4324 (N.D. Cal., filed September 18, 2013). The plaintiffs contend that regardless whether the products actually contain sugar or dried sugar cane syrup as sweeteners, the Food and Drug Administration (FDA) requires that these terms, and not “evaporated cane juice,” be used on product labels. They cite a 2000 FDA guidance letter and warnings that FDA subsequently provided to companies using the prohibited term on food labels. They assert that the state’s unfair competition law does not require that they relied on the labels in making their purchasing decisions, just that they would not otherwise have purchased an unlawful product, “absent the Defendant’s failure to disclose…
According to a news source, the Turkish Competition Authority has concluded a 15-month investigation and imposed a fine of 17.9 million Turkish Liras (US $8.6 million) on Frito-Lay, finding that it engaged in practices to ensure that it was the only salty snack brand available for sale in retail shops. While the initial decision and fine have apparently been issued to the company, a more detailed “reasoned decision” will be forthcoming. The company, which contends that it “has strong policies in place to achieve compliance with the laws and regulations everywhere we do business,” will reportedly have the right to file an appeal. See BakeryandSnacks.com, September 6, 2013.
A multidistrict litigation (MDL) court in New York has granted in part the motion to dismiss filed in a putative class action alleging that Frito-Lay North America and PepsiCo., its parent, mislead consumers by labeling various Tostitos®, SunChips® and Fritos Bean Dip® products as “all natural” when they contain genetically modified organisms (GMOs). In re Frito-Lay N. Am., Inc. All Natural Litig., MDL No. 2413 (E.D.N.Y., order entered August 29, 2013). The court dismissed PepsiCo, Inc. from the litigation without prejudice, finding that the complaint failed to allege sufficient facts to support its liability. Among other matters, the court refused to dismiss the suit on the basis of (i) the primary jurisdiction doctrine (noting that the issues do not require specialized knowledge to resolve and that “the FDA [Food and Drug Administration] is unlikely to respond in a timely manner to any referral from this Court”), (ii) preemption (finding that FDA’s…
The Food and Drug Administration (FDA) has apparently signaled its intent to proceed with an experimental study of consumer responses to nutrient content claims on fortified foods by issuing a notice of the proposed collection of information to the Office of Management and Budget. First announced in the August 15, 2012, Federal Register, the study would involve 7,500 adults asked to complete a 15-minute web-based survey designed to gauge their responses “to expressed and implied nutrient content claims on the labels of snack foods such as cookies, carbonated beverages, and candy.” “The study is a part of the Agency’s continuing effort to enable consumers to make informed dietary choices and construct healthful diets,” concludes FDA, which has estimated the total burden of this information collection at 3,099 hours. “Results of the study will be used primarily to inform the Agency’s understanding of how claims on the packages of fortified food…
A Florida resident has filed a putative statewide class action against Gruma Corp., alleging that the company falsely advertises its Mission® Restaurant Style Tortilla chip products as “all natural” when they contain genetically modified organisms (GMOs). Griffith v. Gruma Corp., No. 13-80791 (S.D. Fla., filed August 12, 2013). Alleging violations of the Florida Deceptive and Unfair Trade Practices Act and contending that her claims “mirror the labeling, packaging, and advertising requirements mandated by federal regulations and laws,” the plaintiff claims that the products are misbranded and the labels are false and misleading because GMOs are not natural and she understood that product representation to mean that the chips contained no GMO ingredients. Alleging damages in excess of $5 million, the plaintiff seeks injunctive relief, restitution, disgorgement, actual damages, attorney’s fees, costs, and interest.
The Judicial Panel on Multidistrict Litigation (JPML) has denied transfer to a multidistrict litigation (MDL) court of consumer-fraud lawsuits involving Capatriti brand “100% Pure Olive Oil” made by Kangadis Food Inc. d/b/a The Gourmet Factory and numerous snack, cereal, protein bar, and frozen entrée products made by the Kashi Co. In re Capatriti Brand Olive Oil Mktg. & Sales Practices Litig., MDL No. 2469; In re Kashi Co. Mktg. & Sales Practices Litig., MDL No. 2456 (J.P.M.L., decided August 6, 2013). According to the court, centralization is not appropriate in the olive oil suit because the Southern District of New York action has made “significant progress” and the number of actions pending in adjacent districts is small with a “correspondingly limited number of involved counsel and courts.” Because the plaintiff in a New Jersey action has considered voluntarily transferring his action to New York, the JPML found that alternatives to centralization…
The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
Three putative class action lawsuits have been filed against Kellogg Co. in a California federal court alleging that the company misleads consumers by labeling its Super Mario Fruit Snacks® and Pop Tarts® as “Made with Real Fruit.” Spevak v. Kellogg Co., No. 13-2767, Barnes v. Kellogg Co., No. 13-2768, Ford v. Kellogg Co., No. 13-2770 (N.D. Cal., filed June 14, 2013). Each plaintiff is represented by Benjamin Lopatin in the Law Offices of Howard Rubinstein. Plaintiff Alicia Spevak alleges that the “real fruit” claim is misleading because the fruit snack product “merely contains de minimis real fruit and unhealthy, unnatural ingredients, chemicals and preservative additives, in addition to merely containing apple puree rather than real fruit, which a reasonable consumer would not expect from a product claiming to be ‘Made with Real Fruit.’” Spevak seeks to represent a class of California product purchasers and alleges unfair, fraudulent and unlawful business practices; false and…
A federal court in Arkansas has ruled that it has jurisdiction, pursuant to the U.S. Supreme Court’s seminal standing decision under the Class Action Fairness Act (CAFA), Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), to adjudicate the putative class claims filed by a woman who alleges that Frito-Lay deceives consumers by labeling its Tostitos® and SunChips® products as “All Natural” because they contain genetically modified corn and hexane-extracted soybean oil. Deaton v. Frito-Lay N. Am., Inc., No. 12-1029 (W.D. Ark., order entered June 5, 2013). At issue was whether the defendants had submitted sufficient evidence to show that the amount in controversy exceeded CAFA’s $5 million jurisdictional minimum. The plaintiff had stipulated that she would not seek more than $5 million to keep the lawsuit in state court, but conceded that her stipulation could not prevent removal under the Knowles decision. The court ruled that the…
