A plaintiff has alleged in Massachusetts federal court that Whole Foods Market mislabels its 365 Everyday Value Plain Greek Yogurt as containing 2 grams of sugar per serving despite Consumer Reports tests showing that a serving of the product contains an average of more than 11 grams of sugar. Knox v. Whole Foods Market, No. 14-13185 (U.S. Dist. Ct., D. Mass., filed Aug. 1, 2014). According to the complaint, the plaintiff learned about the alleged labeling discrepancy from Consumer Reports magazine, which tested six samples of 365 Everyday Value Plain Greek Yogurt and apparently found the average sugar content to be nearly six times the amount listed on the label. Whole Foods reportedly responded to the magazine’s findings by asserting that it relied on testing results from reputable third-party labs. The plaintiff alleges breach of warranty, unjust enrichment and negligence, and he seeks class certification, compensatory and punitive damages, attorney’s…
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The U.K. Supreme Court has reportedly refused to consider the appeal filed by Chobani Inc. from an appeals court order dismissing its appeal of a permanent injunction prohibiting the company from designating its U.S.-made yogurt as “Greek” yogurt. Additional details about the January 2014 appeals court ruling appear in Issue 511 of this Update. According to a court spokesperson, three justices dismissed the application for permission to appeal “because the application [did] not raise a point of law of general public importance.” Fage U.K., Ltd., which instituted the litigation, said of the ruling, “The High Court has ended the ‘Greek yogurt’ case, its decision is final. Chobani is forbidden from selling US-made strained yogurt as ‘Greek’ in the United Kingdom.” Fage also reportedly said that Chobani must pay its legal fees. Meanwhile, expressing disappointment in the outcome, Chobani has apparently indicated that it no longer sells its yogurt in Britain,…
Duke University researchers have reportedly identified a “highly pathogenic mold” in recalled yogurt samples, raising questions about the human health implications of fungal pathogens such as Mucor circinelloides. Soo Chan Lee, et al., “Analysis of a foodborne fungal pathogen outbreak: virulence and genome of a Mucor circinelloides isolate from yogurt,” mBio, July 2014. After isolating the fungal strain from Chobani Greek yogurt voluntarily recalled in September 2013, the study’s authors apparently identified the pathogen as M. circinelloides f. circinelloides, a subspecies “commonly associated with human infection,” and noted that the yogurt isolate was virulent in both mouse and wax moth larva host systems. These isolates also survived transit through the GI tract in the mouse model, suggesting that “M. circinelloides can spoil food products and cause gastrointestinal illness in consumers and may pose a particular risk to immunocompromised patients.” “Typically when people think about food-borne pathogens, they think about viruses or…
A pair of plaintiffs has filed putative class actions against Chobani LLC and Fage Dairy Processing SA in New York federal court claiming that the yogurt producers deceptively marketed yogurt as healthy despite its high sugar content. Stoltz v. Chobani LLC, No. 1:14-cv-3827 (E.D.N.Y., filed June 19, 2014); Stoltz v. Fage Dairy Processing SA, No. 1:14-cv-3826 (E.D.N.Y., filed June 19, 2014). The nearly identical suits allege that Chobani and Fage used a label intended “to create consumer confusion by causing purchasers to impute any meaning to the 0 percent that consumers wish, such as that the products lack sugar, carbohydrates, calories or any other content which a consumer may believe is unhealthy,” according to the complaint against Fage. The complaints include pictures of the defendants’ products and pictures of competitors’ products to illustrate the industry standard of including what nutrition levels the “0 percent” refers to, such as fat or…
Public Health attorney and author Michele Simon has issued a report titled “Whitewashed: How Industry and Government Promote Dairy Junk Foods.” According to Simon, dairy foods have gotten “a pass” as the public health community focuses on “obvious culprits such as soft drinks and fast food” to address the nation’s “public health epidemic due to poor diet.” The report explains how plain liquid milk consumption has fallen in the United States and been replaced by its consumption as flavored milk, with cereal or in a drink. Simon claims that today half of the milk supply makes 9 billion pounds of cheese and 1.5 billion gallons of frozen desserts, such as ice cream, and 11 percent of all sugar is used in dairy product production. She refers to these products as “dairy junk foods” loaded with saturated fat, sugar and salt. The report focuses on the government’s collection of industry fees…
The former wife of billionaire Chobani, Inc. CEO Hamdi Ulukaya has alleged that he “boasted on occasions that he had obtained the formula for the Chobani brand of yogurt from [competitor] Fage by bribing a former employee of Fage. He traveled to Europe and bribed this individual with 30,000 Euros.” Giray v. Ulukaya, No. 652838-2012 (N.Y. Sup. Ct., N.Y. Cty., memorandum filed April 3, 2014). She made the allegation in a memorandum of law filed in support of her motion for injunctive relief in litigation seeking a determination that she is a 53 percent shareholder in defendant Euphrates, Inc., the assets of which, she claims, were used to create Chobani. Plaintiff Ayse Giray, a New York physician, also claims that she financed the formation of Euphrates “and is merely claiming what was acknowledged by defendants in writing. The yogurt was based upon a recipe he stole from a competitor, Fage.…
While a federal court in California has dismissed a request for injunctive relief in a consumer fraud action against Wallaby Yogurt Co. for lack of standing, it will allow the first amended complaint’s remaining claims to proceed. Morgan v. Wallaby Yogurt Co., Inc., No. 13-0296 (N.D. Cal., order entered March 13, 2014). Additional details about the court’s ruling on the plaintiff’s original complaint appear in Issue 500 of this Update. As to the request for prospective injunctive relief, the court agreed with the defendant that the plaintiffs will not be deceived as to future product purchases because they now know that “evaporated cane juice” is added sugar. So ruling, the court acknowledged a split among the district courts in the circuit on this issue. The court also expressly disagreed with Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal. Sept. 19, 2013), to the extent that the court (i) found that…
The England and Wales Court of Appeal has dismissed the appeal filed by Chobani from a lower court’s grant of permanent injunction barring the company from selling “Greek yogurt” in the United Kingdom, finding that the court did not err in ruling that “FAGE was entitled to restrain Chobani from passing off its American made yoghurt as and for yoghurt made in Greece by the use of the description Greek yoghurt.” FAGE UK Ltd. v. Chobani UK Ltd., [2014] EWCA (Civ) 5 (decided January 29, 2014). Details about the lower court ruling appear in Issue 477 of this Update. Chobani has reportedly indicated that it intends to appeal the ruling to the Supreme Court, saying “We remain of the view that the population of the U.K. know and understand Greek yogurt to be a product description regardless of where it is made. We remain committed to the U.K. market and…
Citing the settlement of similar class claims in a Florida court and plausibility issues, a federal court in California has dismissed with prejudice a putative class action alleging that companies misbrand products with an evaporated cane juice (ECJ) designation and sell products not meeting the standard of identity for yogurt and milk, including soymilk and almond milk. Ang v. WhiteWave Foods Co., No. 13-1953 (N.D. Cal., decided December 10, 2013). According to the court, the California plaintiffs, who filed their complaint after the class action was filed in Florida, were members of the class, knew about that settlement and had an opportunity to, but did not, object to it. Thus, the court found their ECJ and yogurt claims barred by res judicata. As for claims that consumers are confused by use of the terms “soymilk,” “almond milk,” and “coconut milk” in the names of Silk® products, an alleged violation of…
A California resident has filed a putative nationwide class action against Lifeway Foods, Inc., alleging that many of its kefir, lassi and frozen yogurt products are misbranded under federal law and the state’s Sherman Law because they list as ingredients “Evaporated Cane Juice” or “Organic Cane Juice,” terms that purportedly render the products illegal. Figy v. Lifeway Foods, Inc., No. 13-4828 (N.D. Cal., San Francisco Div., filed October 17, 2013). The plaintiff avers that he and the class purchased these illegal products at a premium price and have sustained economic damages under the unlawful business acts and practices law. According to the complaint, the “unlawful sale of an illegal product is the only element necessary for the UCL claim. No reliance is necessary.” The plaintiff requests restitution, injunctive relief, corrective action, attorney’s fees, costs, and interest.
