Tag Archives Texas

A consumer has filed a putative class action alleging that North Dallas Honey Co. sells its Nature Nate’s honey as “100% raw” but heats it to 120 degrees during bottling. Pierce v. N. Dallas Honey Co., No. 19-0410-B (N.D. Tex., Dallas Div., filed February 19, 2019). The plaintiff argues that heating honey to more than 105 degrees can cause “[m]ost or all of the enzymes” to be “lost” or “denatured.” The plaintiff cites the “international standard promulgated by Codex Alimentarius for honey” to argue that Nature Nate’s honey contains elevated values of 5-hydroxymethylfurfural (HMF), which can indicate that “the honey has been heated enough to break down the enzymes contained in the honey.” The complaint further asserts that the honey product “is also not necessarily 100% honey” because some tested samples allegedly “showed that syrups had been added to the honey.” For allegations of negligence, fraudulent misrepresentation, fraudulent concealment, unjust…

A federal court in Texas has granted partial summary judgment to WFM Private Label L.P., a subsidiary of Whole Foods Market Inc., in a contract dispute related to 365 Everyday Value Greek yogurt's sugar content. WFM Private Label, L.P., v. 1048547 Ontario Inc., No. 14-1013 (W.D. Tex., entered June 18, 2018). Whole Foods hired Skotidakis Goat Farm (SGF) to supply Greek yogurt products for the 365 Everyday Value brand, and SGF provided the company with nutritional information. SGF later received additional lab results indicating a higher sugar content than previous testing indicated, but it did not notify Whole Foods of the new results until a few days before Consumer Reports published an article alleging that the company's plain yogurt contained five times the sugar content listed on the product labeling. Eleven putative class actions were filed against Whole Foods; according to the vendor agreement, SGF had an obligation to indemnify Whole Foods in the lawsuits.…

A federal court in Louisiana has dismissed with prejudice a lawsuit alleging that Chipotle Mexican Grill's food caused the plaintiff to contract Helicobacter pylori, holding that the plaintiff had not pleaded "any semblance of a fact that causally connects [his] illness" with Chipotle. Gilyard v. Chipotle Mexican Grill Inc., No. 17-0441 (W.D. La., entered June 14, 2018). The court found that the plaintiff failed to plead "factual allegations sufficient to show that Chipotle failed to act as a prudent person skilled in food preparation." The only factual allegation in the complaint, the court noted, was that the plaintiff regularly ate at Chipotle in the two months before he was diagnosed with an H. pylori infection. Further, the court found, the complaint did not allege how the food was defective, how the duty of reasonable care in making or storing the food was breached, or that Chipotle provided contaminated food or utensils.

A couple has reportedly filed a lawsuit against the Texas Department of State Health Services alleging that “burdensome” regulations bar them from selling their canned pickled vegetables at farmers’ markets. The plaintiffs own a farm near Austin and sell vegetables locally, but when they sought to expand into sales of pickled beets, okra and carrots, they learned that Texas bars sales of all pickled vegetables except cucumbers. Under state law, bakers can sell goods at markets, fairs and festivals without becoming licensed food manufacturers. The Health Services Department has limited sales to pickled cucumbers, specifically excluding other canned pickled vegetables. State Rep. Eddie Rodriguez (D-Austin), who sponsored an amendment to the law to allow the sale of pickles, reportedly told the Texas Tribune that he did not know the department’s rules construed "pickles" to mean only pickled cucumbers. "That pickle definition is kind of flying in the spirit of the legislation,”…

The U.S. Court of Appeals for the Fifth Circuit has affirmed a ruling that a Texas restaurant, “The Krusty Krab,” infringed Viacom International Inc.'s common law trademark. Viacom Int’l, Inc. v. IJR Capital Invs., No. 17-20334 (5th Cir., entered May 22, 2018). The court held that Viacom had established both use and distinctiveness of the mark because "The Krusty Krab” had been extensively and consistently licensed, establishing Viacom’s ownership of the mark as an identifier of goods and services. The court also found an impermissible likelihood of consumer confusion. Although the court noted that its ruling did not establish trademark protection “in every context” for Viacom’s mark, it affirmed the finding of the district court that Viacom had established its ownership in common law.

A Texas appeals court has held that Mark Anthony Brewing cannot produce and label a house-brand beer for TGI Friday’s restaurants because state law prohibits “overlapping” relationships among alcohol manufacturers, distributors and retailers. Texas Alcoholic Beverage Comm’n v. Mark Anthony Brewing, Inc., No. 16-0039 (Texas Ct. App., entered October 13, 2017). The Texas Alcoholic Beverage Commission (TABC) rejected Mark Anthony Brewing's application for approval of the beer labels, which it created as part of a licensing agreement with TGI Friday's, on the grounds that Texas’ “tied-house” statutes prohibit such business relationships. Specifically, TABC found, the agreement violated the part of the administrative code providing that “[n]o application for a label shall be approved which indicates by any statement, design, device, or representation that the malt beverage is a special or private brand brewed or bottled for, or that includes the name, trade name, or trademark of any retailer permittee or…

A Texas man alleges the tortilla chips provided for his food demonstrations were rancid and adulterated with a salt shaker and a dirty napkin, threatening his business relationships and causing him emotional distress. Henry’s Dream Distrib. v. El Matador Foods, No. 2017-46884 (Tex. Dist. Ct., Harris Cty., filed July 14, 2017). The plaintiff asserts that in two separate incidents related to tortilla chips he purchased from El Matador Foods, a salt shaker rolled out of a bag at a sales demonstration and a dirty napkin was found in a bag that held rancid chips. According to the complaint, the plaintiff suffered a stroke after the second event. Claiming breach of contract, negligence, breach of warranty, negligent misrepresentation and violations of Texas consumer protection law, the plaintiff seeks damages and attorney’s fees.   Issue 641

Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 17­0842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials.   Issue 631

The U.S. Environmental Protection Agency (EPA) has announced a settlement with Whole Foods Inc. after a year-long investigation into the company’s hazardous-waste disposal at facilities in five states. According to EPA, the investigation uncovered that Whole Foods did not properly make hazardous waste determinations—as required by the Resource Conservation and Recovery Act—and mishandled spent lamps. Under the settlement terms, Whole Foods will correct the violations, pay $3.5 million and “promote hazardous waste compliance in the retail industry as part of a supplemental environmental project.” That project will aim to educate Texas retailers—”particularly smaller businesses”—about hazardous waste laws and the importance of maintaining compliance. “All companies must follow the law and be responsible stewards of their hazardous waste, from generating it to safely disposing of it,” an EPA administrator was quoted as saying in a September 20, 2016, press release. “Whole Foods is correcting these violations and will ensure their stores…

A Texas judge has reportedly voided a 2013 law prohibiting Texas craft-beer brewers from selling territorial rights to distribute their beers, finding the state had no compelling state interest in restricting the breweries. The statute was part of a package of other laws benefitting small breweries, but the distribution limitation was apparently inserted at the behest of large Texas wholesalers. The rule prevented brewers from receiving monetary compensation for distribution rights. The brewer who challenged the law, a former plaintiffs’ attorney, told Texas Lawyer, “It restores millions of dollars of value to brewers who had their rights taken from them for no justifiable reason.” See Houston Chronicle, August 26, 2016; Texas Lawyer, August 29, 2016.   Issue 617

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