A federal court in California has dismissed certain claims, with leave to amend, in putative class litigation challenging various aspects of labels for Wallaby Yogurt Co. and Trader Joe’s Co. food products; it has refused to abstain from deciding the matters under the primary jurisdiction doctrine. Morgan v. Wallaby Yogurt Co., Inc., No. 13-296, Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., orders entered October 10, 2013). Both suits include claims, among others, that the companies mislead consumers by using “evaporated cane juice” instead of “sugar” on their product labels. In Wallaby, the court rejected the defendant’s argument that the plaintiffs lacked standing to bring their claims because they had not plausibly alleged actual injury. Wallaby apparently said, “Plaintiffs paid for food products. They consumed the products without incident or physical injury. The goods were not tainted, spoiled, adulterated, or contaminated. They do not allege that the ingredients were…
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On reconsideration, a federal court in California has dismissed a lawsuit against Chobani, Inc., in a putative class action alleging that its yogurt products are mislabeled because they include “evaporated cane juice” (ECJ) as an ingredient and state that they have no added sugar and contain only “natural ingredients.” Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., San Jose Div., order entered September 19, 2013). Details about the order the court reconsidered appear in Issue 491 of this Update. The court dismissed the Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims without prejudice and gave the plaintiffs 21 days to file a third amended complaint. Claims for unjust enrichment and violation of the Song-Beverly and Magnuson-Moss Warranty Act were dismissed with prejudice. Essentially, the court found that the plaintiffs lacked standing to pursue their UCL, FAL and CLRA claims because they failed to…
While dozens of consumers have purportedly experienced nausea and cramps after eating Chobani Greek Yogurt products allegedly contaminated with mold, a California resident without apparent physical injury has filed a putative class action against the company to recover damages for purchasing a defective product. Green v. Chobani, Inc., No. 13-2106 (S.D. Cal., filed September 9, 2013). Plaintiff Harold Green alleges that he purchased 16 cups of yogurt subject to a company recall and that he and his family members consumed some of them before the September 5, 2013, recall date. After receiving notice of the recall, the plaintiff claims that he returned six cups to the store. Seeking to represent a nationwide class and statewide subclass of purchasers, the plaintiff alleges negligence and breach of the implied warranty of merchantability for food. He requests restitution, disgorgement, interest, compensatory damages, attorney’s fees, and costs. See NBCNews.com, September 10, 2013. Issue…
The Center for Science in the Public Interest (CSPI) has asked Dannon to stop using carmine—a dye reportedly derived from the dried, crushed bodies of cochineal insects—to fruit-flavored yogurt to give it a pink color. According to the advocacy watchdog, Dannon’s practice not only cheats consumers, “who might expect that the named fruits—and not the unnamed creepy crawlies— are providing the color,” but also puts consumers at risk because it has been linked to allergic reactions ranging from hives to anaphylactic shock. See CSPI News Release, July 24, 2013.
A federal court in California has dismissed some of the consumer fraud claims filed against Chobani, Inc. in putative class litigation alleging that the company mislabels its yogurts as containing “evaporated cane juice,” misleads consumers by stating that its products do not contain added sugar and falsely states that its products are “all natural” because they contain artificial ingredients, flavorings, coloring, and chemical preservatives. Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal., order entered July 12, 2013). The court granted with leave to amend (i) the motion to dismiss as to the evaporated cane juice claims to the extent they are based on products not purchased by the plaintiffs; and (ii) the motion to dismiss the plaintiffs’ Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumers Legal Remedies Act (CLRA) claims based on the “no sugar added” and “all natural” representations, finding that the plaintiffs did not sufficiently allege…
A federal court in California has dismissed without prejudice a putative class action alleging that Wholesoy & Co. misleads consumers by (i) listing “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient on its soy yogurt products in violation of Food and Drug Administration (FDA) labeling rules, and (ii) marketing its soy product as yogurt because it fails to comply with FDA’s standard of identity for “yogurt.” Hood v. Wholesoy & Co., No. 12-5550 (N.D. Cal., decided July 12, 2013). The court agreed with the company that the complaint must be dismissed under the primary jurisdiction doctrine because its resolution would require the court to decide an issue committed to the agency’s expertise “without a clear indication of how FDA would view the issue.” Specifically, the court found that the evaporated cane juice guidance document on which the plaintiff relied is expressly “not a ‘legally…
A federal court in New York has dismissed putative class claims filed against Dannon Co., alleging that its Activia® yogurt products are not actually yogurt because they contain filler products including milk protein concentrate (MPC), an ingredient that the Food and Drug Administration (FDA) purportedly prohibits from use in yogurt. Conroy v. The Dannon Co., Inc., 12-6901 (S.D.N.Y., decided May 9, 2013). The defendant challenged the claims on the ground that the “plaintiff’s allegations are premised on a misunderstanding of the FDA’s standard of identity for yogurt.” The court agreed with Dannon that while MPC is not included in the list of permissible ingredients for yogurt, it is a permitted “other optional ingredient” despite FDA’s failure to include MPC in its 1981 definition of the phrase. According to the court, the issue in the case was the proper interpretation of a stay FDA imposed in 1982 on certain provisions of…
Two California residents who recently sued Trader Joe’s for allegedly misbranding certain foods by using “organic evaporated cane juice” on its product labels have filed a putative nationwide class action against a yogurt company with similar allegations. Gitson v. Clover Stornetta Farms, Inc., No. 13-1517 (N.D. Cal., filed April 4, 2013). Details about the Trader Joe’s lawsuit appear in Issue 477 of this Update. The named plaintiffs contend that the defendant markets some 14 different flavors of its yogurt products, all of which list “organic evaporated cane juice” as an ingredient on their labels “in violation of a number of labeling regulations.” They cite Food and Drug Administration (FDA) guidance, warning letters and an open letter to demonstrate that use of this term for a yogurt sweetener is “illegal.” The plaintiffs also target the company’s websites for their alleged used of “illegal claims.” According to the complaint, they relied on…
According to a news source, U.K. High Court Justice Michael Briggs has ordered New York-based Chobani to change its “Greek” yogurt labels, finding that they mislead more than 50 percent of British consumers into believing that it was made in Greece. Company rival Fage brought the lawsuit to “restrain Chobani from passing off its American-made yoghurt in England and Wales under the description Greek yoghurt.” The court apparently determined that “the very small print used on the rear of Chobani’s pots” stating that the products are made in the United States was “nowhere near sufficient” to alert people to their true origin. Chobani claimed that the “Greek” designation was a reference to how the product is made and not to its country of origin. Danone, which also makes the thickened, strained yogurt products, reportedly indicated that it was considering the implications of the ruling; it was temporarily barred in the…
A California federal court has dismissed with prejudice claims filed against a yogurt maker and its parent company alleging that its Greek style yogurt product was misbranded under federal food regulations. Smith v. Cabot Creamery Coop., Inc., No. 12-4591 (N.D. Cal., decided February 25, 2013). The putative class plaintiffs alleged that the defendants used whey protein concentrate (WPC) and milk protein concentrate (MPC) as “filler material” to “thicken Cabot Greek and increase its protein content, instead of making Greek yogurt the ‘authentic’ way which involves filtering the liquid whey byproduct during the manufacturing process and keeping only the protein-rich solid portion.” They also alleged that the Food and Drug Administration (FDA) forbids the use of WPC and MPC. The defendants moved to dismiss the claims because they were premised on the alleged unlawful use of these ingredients, arguing that FDA allows WPC and MPC to be used lawfully “as optional ingredients…
