A Tennessee federal court has ruled that a personal-injury lawsuit against Whole Foods Market can proceed because the plaintiffs did not plead that they were “practicing vegans” and therefore could not be expected to know that a vegan pizza product might contain nuts. Jones v. WFM-WO, No. 17-0749 (M.D. Tenn., order entered July 17, 2017). The plaintiff alleged that she bought two slices of “Vegan Garden Pizza” from a Whole Foods bakery, relying on the label indicating that the pizza “did not contain certain nuts and/or ingredients derived from nut products.” After her daughter ate the pizza and suffered an allergic reaction requiring hospitalization, the plaintiff called the store and talked to the department manager, who reportedly told her the pizza was “mislabeled” and that an employee had prepared it using a taco sauce containing crushed pecans. Whole Foods argued that the pizza was exempt from the warning-label requirements of…
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The Tennessee Office of the Attorney General has released an opinion finding that a state law requiring products labeled as “Tennessee Whiskey” or similar designations to be filtered through charcoal unconstitutionally exempts Prichard’s Distillery because the statute includes a grandfather clause created to apply only to the distillery. The 2013 law codified the “Lincoln County Process” of making whiskey, which requires that the product is (i) manufactured in Tennessee; (ii) composed of 51 percent corn; (iii) distilled to no more than 80 percent alcohol by volume; (iv) aged in new, charred oak barrels in-state; (v) filtered through maple charcoal before aging; (vi) placed in the aging barrels at no more than 62.5 percent alcohol by volume; and (vii) bottled at no less than 40 percent alcohol by volume. If a product does not fulfill each requirement, it cannot be advertised, labeled or referred to as “Tennessee Whiskey” or “Tennessee Sour Mash…
Prichard’s Distillery Inc., maker of Benjamin Prichard’s Double Barreled Bourbon, has filed a lawsuit against Sazerac Co. alleging that the liquor manufacturer has violated its trademark in “double barreled” by selling A. Smith Bowman Limited Edition Double Barrel Bourbon Whiskey and Buffalo Trace Experimental Collection Double Barreled, a bourbon. Prichard’s Distillery Inc. v. Sazerac Co., No. 14-1646 (U.S. Dist. Ct., M.D. Tenn., filed August 11, 2014). Prichard’s claims that it has owned a trademark on the use of “double barreled” in liquor sales since 2002, and the term comes from Prichard’s distilling process, which involves aging the bourbon in one barrel, diluting it to a lower proof, then aging it in a second barrel to reinforce the flavor. The company seeks an injunction preventing Sazerac from using “double barreled” on its products as well as damages multiplied due to Sazerac’s “willful and wrongful conduct.” Issue 535
Diageo Americas Supply, Inc. has filed a declaratory judgment action against the Tennessee Alcoholic Beverage Commission director challenging the constitutionality of a 1937 law that requires licensed alcohol beverage makers in the state to store their products “only within the county authorizing the operation or in a county adjacent to the county authorizing the manufacturing operation, and such possession shall be limited to storage facilities of such manufacturer” (Storage Law). Diageo Americas Supply, Inc. d/b/a George A. Dickel & Co. v. Bell, No. 14-0873 (M.D. Tenn., filed March 28, 2014). Alleging that the law has never been enforced, the complaint includes the defendant’s March 20 letter warning the company that it was in violation of the Storage Law because it “is storing product (manufactured/distilled alcoholic beverages) produced at its Tullahoma, Tennessee, distillery in warehouses located in Louisville, Kentucky.” According to the company, most of its distilled alcohol beverages are stored on-site…
According to a news source, Jack Daniel’s Properties, Inc. has filed a trademark infringement action against the companies that produce and sell Popcorn Sutton’s® Tennessee white whiskey. Jack Daniels Props., Inc. v. J&M Concepts, LLC, No. 13-1156 (M.D. Tenn., filed October 18, 2013). The whiskey is apparently named after an Appalachian moonshiner who killed himself rather than serve a federal sentence after he was convicted of offenses relating to moonshine production. The defendants purportedly sold their product first in mason jars, but then switched to bottles that allegedly copy Jack Daniel’s bottle—“a square-shaped bottle with angled shoulders that house a signature and beveled corners, and labeling with a white-on black color scheme, filigree designs, and font style reminiscent of that of the Jack Daniel’s trade dress,” the complaint said. Alleging willful trademark infringement, deceptive trade, fraudulent misrepresentation, and unfair competition, the company seeks injunctive relief, disgorgement of unjust profits and…
The companies that make 5-Hour Energy have reportedly expanded a quest to keep their recipe from disclosure by seeking the application of a Tennessee law protecting trade secrets to requests made by the Tennessee Department of Commerce and Insurance and state attorney general for all of the product’s ingredients and their amounts. Information about the suit that Living Essentials and Innovation Ventures filed in Oregon seeking the same relief appears in Issue 488 of this Update. Thirty-three states have launched an investigation into 5-Hour Energy, which purportedly contains more caffeine and other stimulant ingredients than other similar products. See The Tennessean, June 24, 2013.
A federal court in Tennessee has dismissed the two remaining claims in antitrust litigation filed by certain retail processed milk sellers against Dean Foods Co. and the Dairy Farmers of America, Inc. In re: Se. Milk Antitrust Litig., No. 08-1000 (E.D. Tenn., decided March 27, 2012) (ruling applies to Food Lion, LLC v. Dean Foods Co., No. 07-188). At issue were claims for violation of sections 1 and 2 of the Sherman Act (agreement not to compete and conspiracy to monopolize). The court found that the plaintiffs’ expert failed to “create a material issue of fact on the question of whether the price increases were ‘by reason of’ an illegal conspiracy in violation of the antitrust laws and Plaintiffs do not allege an injury of the kind which the antitrust laws are designed to prevent.” Because the plaintiffs were unable to establish antitrust injury, the court determined that the defendants…
The Food and Drug Administration (FDA) has filed a complaint for permanent injunction against Tennessee-based companies that process food products and ingredients, such as spices, spice blends, herbs, and sauces, claiming they have repeatedly violated the law by selling adulterated foods. United States v. Am. Mercantile Corp., No. 11-02371 (W.D. Tenn., filed May 11, 2011). According to the complaint, the foods are adulterated because “they have been prepared, packed, and held under insanitary conditions whereby they may have become contaminated with filth.” An array of insects and insect and rodent excreta were allegedly observed on a number of occasions at defendants’ facilities, and repeat visits by inspectors showed that the cited violations had not been corrected. Other problems included spilled food, unsatisfactory cleaning, gaps in the building exterior, and expired products. FDA seeks to permanently enjoin the defendants from “introducing or delivering for introduction into interstate commerce any article of food…
