A California federal court has refused to certify a class of consumers alleging that R.C. Bigelow Inc. misled them by over-representing the amount of antioxidants contained in its green tea. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered March 29, 2016). The court previously refused to allow the plaintiff to seek financial records to calculate damages. Additional details appear in Issue 575 of this Update. In its certification analysis, the court found fault with the plaintiff’s three suggested damages models: (i) a restitution calculation, (ii) statutory damages or (iii) a nominal alternative. The plaintiff argued that the restitution calculation model should amount to payments of the full purchase price of the product because the tea is allegedly “legally worthless” for failing to meet U.S. Food and Drug Administration requirements on antioxidant nutrient claims. The court refused to find that consumers received no benefit from drinking the tea, “in…
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The Centers for Disease Control and Prevention (CDC) has released the latest statistics on sugar-sweetened beverage (SSB) consumption in 23 states and the District of Columbia, concluding that, in 2013, approximately 30 percent of surveyed adults reported drinking at least one SSB per day. Sohyun Park, et al., “Prevalence of Sugar-Sweetened Beverage Intake Among Adults—23 States and the District of Columbia, 2013,” Morbidity and Mortality Weekly Report, Feb. 26, 2016. Relying on data gathered via Behavioral Risk Factor Surveillance System (BRFSS) telephone survey, the study refined previous questionnaires to solicit information about the consumption of sweet tea and energy drinks in addition to regular soda and sweetened fruit beverages. The results evidently indicate that “at least once daily SSB intake was most common among persons aged 18–24 years (43.3%), men (34.1%), blacks (39.9%), persons who reported being unemployed (34.4%), and persons with less than a high school education (42.4%).” Across…
Two consumers have filed a putative class action alleging that two lines of kombucha manufactured by Millennium Products and sold by Whole Foods Market contain several defects, including levels of alcohol higher than the label represents and packaging inadequate to properly accommodate the product’s secondary fermentation. Pedro v. Millennium Prods., Inc., No. 15-5253 (N.D. Cal., filed November 17, 2015). Millennium’s kombucha, a fermented tea product, is sold in two lines—a “Classic” line requiring the purchaser to be 21 years old and an “Enlightened” line containing “a trace amount of alcohol” but insufficient amounts to require identification upon purchase (less than 0.05 percent alcohol by volume). The plaintiffs allege that both lines contain more alcohol than the label indicates, which allegedly caused one plaintiff to become sick and experience “among other things, trouble breathing, and increased heart rate.” The plaintiffs further allege the byproduct of kombucha’s fermentation, carbon dioxide, builds up…
A California federal court has denied class certification in a lawsuit consolidated from four separate actions alleging that Hain Celestial Seasonings Teas were produced from ingredients sprayed with pesticides and contained pesticide residue, thus allegedly precluding Hain from labeling its teas as “natural.” In re Hain Celestial Seasonings Prods. Consumer Litig., No. 13-1757 (C.D. Cal., order entered September 23, 2015). In its answer to the complaint, Hain argued the plaintiffs conflated the definitions of “natural” and “organic” in their arguments, noting that under the plaintiffs’ standards, even an apple picked directly from a tree would not be “natural” had pesticides been applied during its growth. The court first chastised the plaintiffs for erroneous references and poorly timed supplemental filings. “Despite 18 months passing between the filing of this lawsuit and the filing of the Certification Motion, Plaintiffs effectively left the Court to drink from a fire hose, perhaps filled with…
The U.S. Food and Drug Administration (FDA) has published a July 31, 2015, warning letter targeting the use of whole stevia leaf in food and beverages. Issued to Ten Ren Tea Co. of San Francisco, Ltd., the letter claims that tea products containing “Stevia leaf, tea bag cut” are adulterated under the Federal Food, Drug, and Cosmetic Act “because they bear or contain an unsafe food additive.” “Any substance added to a conventional food, such as your Ten Ren Chrysanthemum Tea and Hibiscus Spice Tea, must be used in accordance with a food additive regulation, unless the substance is the subject of a prior sanction or is generally recognized as safe (GRAS) among qualified experts for its use in foods [21 CFR 170.30(g)],” notes the agency, which has only permitted highly-refined stevia preparations in specific applications. “[W]e are not aware of any basis to conclude that Stevia leaf is GRAS…
A California federal court has denied a plaintiff’s attempt to obtain Bigelow’s financial records in a putative class action alleging that the company mislabeled its tea. Khasin v. R.C. Bigelow Inc., No. 12-2204 (N.D. Cal., order entered August 12, 2015). The plaintiff argued that the records would help him calculate what portion of the profits he would seek. The court sided with Bigelow, which argued that “its profits and costs are irrelevant because the proper measure of restitution in a food labeling case is the price premium attributable to the challenged label (the difference between the product as labeled and the product as received), not its profits.” The court then cited a similar decision in another food labeling lawsuit with the same plaintiff. Issue 575
A consumer has filed a putative class action against Unilever U.S., PepsiCo and the Pepsi Lipton Tea Partnership alleging that their line of Pure Leaf® Iced Teas are misleadingly labeled as “All Natural” and preservative-free because they contain citric acid, a synthetic ingredient. Ren v. Unilever U.S., Inc., No. 156463/2015 (N.Y. Sup. Ct., filed June 26, 2015). The complaint asserts that Pure Leaf® labels indicate that the products are natural and contain no preservatives despite containing citric acid, which is “industrially manufactured by fermenting certain genetically mutant strains of the black mold fungus, Aspergillus niger.” The companies use citric acid as a preservative, the complaint argues, and it disputes the accuracy of a note in the ingredient list explaining that citric acid provides tartness. The plaintiff seeks class certification, declaratory judgments, damages, restitution, an injunction, and attorney’s fees for allegations of unjust enrichment, breach of warranties, negligent misrepresentation and violations…
A California federal court has confirmed its ruling that a plaintiff in a class action against Twinings North America cannot pursue her claim of unjust enrichment because it duplicates her consumer protection claims. Lanovaz v. Twinings N. Am., No. 12-2646 (N.D. Cal., order entered June 10, 2015). Details about the court’s previous rulings narrowing the claims and certifying an injunctive class appear in Issues 485 and 521 of this Update. In her complaint, the plaintiff alleged that Twinings misbranded its green, black and white teas as a “natural source of protective antioxidants” despite failing to meet U.S. Food and Drug Administration standards for nutrient content claims. The court certified an injunctive class but denied the plaintiff’s unjust enrichment claim. The plaintiff, seeking certification for a damages class through that claim, filed a motion for reconsideration arguing that the damages available through the unjust enrichment claim were different from the damages available via…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
The European Court of Justice (ECJ) has found that a correct and complete list of ingredients can be part of an overall misleading food label in a case challenging a German tea company’s “Felix Raspberry and Vanilla Adventure” (“Felix Himbeer-Vanille Abenteuer”) product for having no flavorings derived from raspberries or vanilla. Bundesverband der Verbraucherzentralen und Verbraucherverbände v. Teekanne GmbH & Co. KG, No. C-195/14 (E.C.J., order entered June 4, 2015). Teekanne advertises its tea product as fruit tea with natural flavorings and a raspberry-vanilla taste, and the label features depictions of raspberries and vanilla flowers and a seal indicating the product contains only natural ingredients. The ingredient list includes “natural flavouring with a taste of vanilla” and “natural flavouring with a taste of raspberry,” according to the court. “That list thus expresses, in a manner free from doubt, the fact that the flavourings used are not obtained from vanilla and raspberries but…
