A consumer has filed a putative class action alleging Pure Brazilian's "cold-pressed" coconut water undergoes high-pressure processing that “reduces the biological, enzymatic and bacterial activity” of the water, allegedly amounting to false advertising and fraud. Khallili v. Pure Brazilian LLC, No. 17-6425 (E.D.N.Y., filed November 5, 2017). The complaint asserts that high-pressure processing not only changes the nature of the product but increases its shelf life; “highly perishable” warnings on the bottle mislead consumers into believing the coconut water is unprocessed by making it appear similar to competing products that have a shorter shelf life, the plaintiff argues. The complaint also alleges that the product is sold at a premium price compared to coconut waters made with similar high-pressure processing. Claiming violations of New York consumer-protection laws, false advertising, fraud, implied warranty of merchantability and unjust enrichment, the plaintiff seeks class certification, damages, injunctive relief and attorney’s fees.
Tag Archives water
In a settlement with California, The Gatorade Co. has agreed to stop suggesting that drinking water harms athletes. California v. Gatorade Co., No. BC676734 (Cal. Super. Ct., Los Angeles Cty., entered September 21, 2017). Gatorade launched a mobile game featuring Usain Bolt that featured the runner speeding up when he ran over the Gatorade logo and slowing down when he touched water droplets. The complaint alleged that players were instructed to “Keep Your Performance Level High By Avoiding Water” and claimed Gatorade violated state unfair competition and false advertising laws. Under the settlement agreement, Gatorade will no longer make the “Bolt!” app available in any form that “creates the misleading impression” that water will hinder athletic performance or that water should be avoided. Gatorade also agreed not to make “statements that disparage water or the consumption of water” and will include a provision in contracts with endorsers that “clearly and…
In a lawsuit brought by the Natural Resources Defense Council (NRDC) alleging failure to meet a deadline to set limits on perchlorate levels in drinking water, a New York federal court has issued an order adopting the U.S. Environmental Protection Agency’s (EPA’s) preferred language to admit the failure. Nat. Res. Def. Council v. EPA, No. 16-1251 (S.D.N.Y., order entered September 19, 2016). An EPA attorney reportedly admitted in court that the agency had missed the deadline of February 11, 2013, to set limits on perchlorate in drinking water after announcing its intention to propose regulations two years prior. NRDC and EPA then submitted proposed orders admitting the failure, and the court adopted EPA’s language without further discussion. See Law360, September 20, 2016. The court’s order finds that (i) EPA triggered a non-discretionary duty to propose a maximum contaminant level goal by February 11, 2013; (ii) EPA failed to propose that goal…
The Ninth Circuit Court of Appeals has affirmed a dismissal of a consumer lawsuit against Costco Wholesale Corp. alleging mislabeling claims against VitaRain Tropical Mango Vitamin Enhanced Water Beverage. Maple v. Costco Wholesale Corp., No. 13-36089 (9th Cir., order entered May 9, 2016). The plaintiff had alleged the product was mislabeled because the product contains added caffeine, precluding the use of “natural” on the label. The district court dismissed the case because the plaintiff did not read the label before purchasing it; on appeal, the plaintiff asserted that he could amend the complaint to add “a subclass of plaintiffs who did read the relevant parts of the label.” Because he did not rely on the label, the plaintiff’s claim failed, and “the potential existence of other classes of which Plaintiff is not a member is irrelevant,” the court found. Further, the “district court abused its discretion by dismissing the action…
California Assembly Member Mike Gatto (D-Glendale) has introduced a bill (A.B. 14) that would require the labeling of food grown using recycled or treated water from oil and gas field activities. “No one expects their lettuce to contain heavy chemicals from fracking wastewater,” Gatto said. “Studies show a high possibility that recycled oil field wastewater may still contain dangerous chemicals, even after treatment.” The proposed label would state: “Produced using recycled or treated oilfield wastewater.” See Press Release of Assembly Member Mike Gatto, August 17, 2015. Issue 576
The European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM Panel) has issued a scientific opinion assessing the health risks of acute and chronic dietary exposure to chlorate, “a byproduct when using chlorine, chlorine dioxide or hypochlorite for the disinfection of drinking water, water for food production and surfaces coming into contact with food.” At the request of the European Commission, the opinion considers the presence of chlorate in both drinking water and food, setting “a tolerable daily intake (TDI) of 3 micrograms per kg (µg/kg) of body weight per day for long-term exposure to chlorate in food,” with “a recommended safe intake level for a daily intake (called the ‘acute reference dose’) of chlorate of 36 µg/kg of body weight per day.” After reviewing data collected by the EFSA Evidence Management Unit, the CONTAM Panel identified drinking water as “the main average contributor to chronic dietary exposure,”…
Two new reports from nonprofit advocacy organizations highlight global water risks and urge food and beverage companies to adopt more robust water stewardship practices at every point in the supply chain. Published by Ceres, Feeding Ourselves Thirsty: How the Food Sector Is Managing Global Water Risks “ranks the nation’s 37 largest food companies on how effectively they are managing precious freshwater supplies.” Finding that packaged food and beverage companies outperformed the agricultural sector in their responses to water risks, the report estimates that “only 30 percent of the companies considered water risks as part of major business planning and investment decision-making,” while only 16 percent “have sustainable agriculture policies that address water.” To help companies improve water efficiency, Ceres recommends, among other things, that global companies (i) analyze water risks for the entire supply chain, (ii) invest in projects that improve watershed health and (iii) disclose water risks and management plans…
A consumer has filed a proposed class action in California federal court alleging that Chiquita Brands, Inc. is responsible for the destructive practices of its “de facto subsidiary,” Cobigua, including the effects of its use of pesticides on the water supply of neighboring communities. Jablonowski v. Chiquita Brands, Inc., No. 15-262 (S.D. Cal., filed February 5, 2015). In the complaint, the plaintiff points to Chiquita’s efforts to represent itself as a responsible company that protects natural ecosystems—including its “famous blue sticker” designed to show that a banana meets the company’s “strict standards”—and he argues that the company indicates that its suppliers are held to the same standards. Cobigua, a Guatemalan company that apparently sells about 95 percent of its stock to Chiquita, “contaminates rivers and drinking water in the affected area with fertilizers, pesticides, fungicides, and organic matter” and “mixes fertilizers into its irrigation system every 14 to 21 days…
At the request of the Hellenic Food Authority, the European Food Safety Authority’s (EFSA’s) Panel on Contaminants in the Food Chain (CONTAM Panel) has issued a scientific opinion on the public health risks associated with the presence of nickel (Ni) in food—especially vegetables—and drinking water. Citing the established tolerable daily intake (TDI) of 2.8 µg Ni/kg body weight (bw) per day, the CONTAM Panel concluded that chronic dietary exposure to nickel represents a concern for the general population and that consumers already sensitized to nickel through dermal contact may develop eczematous flare-up skin reactions at the current levels of acute dietary exposure levels. The CONTAM Panel relied on a total of 18,885 food samples and 25,700 drinking water samples to estimate dietary exposure to nickel, finding that the following food groups were the main contributors across age categories: (i) grain and grain-based products; (ii) non-alcohol beverages (except milk-based beverages); (iii)…
The National Advertising Division (NAD) has referred Talking Rain Beverage Co. to the Federal Trade Commission (FTC) after the company failed to comply with a previous NAD determination finding that certain aspects of its advertising could be misleading. After a July 2014 NAD investigation, Talking Rain’s advertising for Sparkling ICE—which it presents as “the adventurous side of water,” “the vibrant side of water” and “the bold side of water”—was found to be misleading if the product was not shown because consumers may believe that the product is water without additional flavoring. NAD found that Talking Rain’s claim “Naturally flavored sparkling mountain spring water” was not misleading when displayed with the product, which is brightly colored and bears a list of ingredients indicating the inclusion of flavoring agents. In July, Talking Rain said it disagreed with the conclusion but would take NAD’s recommendation into consideration, but following several months of inaction…
