Coca-Cola is the target of three recently-filed putative class action lawsuits in California alleging that the soda was misbranded in violation of federal and state laws because it fails to state that it includes a chemical preservative and artificial flavoring (both of which are alleged to be phosphoric acid).
Specifically, plaintiffs contend that Coca-Cola’s labeling and advertising of its Coke products is unlawful because those product include phosphoric acid but are not labeled as including an “artificial flavor” or “chemical preservative.” Plaintiffs contend that phosphoric acid, as used in Coca-Cola, is more consistent with chemical preservatives or artificial flavoring under the Food Drug and Cosmetic Act than natural flavoring and “[c]ontainers of Coca-Cola do not contain a statement that they contain artificial favoring and or chemical preservatives.” Accordingly, plaintiffs allege that Coca-Cola containers are misbranded under both the FDCA” and corresponding provisions of California state law. Please see the most recent complaint here.
I previously wrote about Wendy’s International Inc. filing a trademark infringement suit against the United Dairy Farmers, Inc. targeting its sale of dairy dessert products under the names “Frosties” and “Frosty Malts.” Now, Law360 reports that the parties have resolved the lawsuit with United Dairy agreeing to cease selling products under the “Frosty” name by November 30, 2013. Please see the complete write-up here.
See Seattle Times report here.
Tomorrow is election day in Washington State with ballot initiative 522 being the new focus of the GMO labeling debate. The initiative would require food products with GMO’s to be labeled beginning July 1, 2015, for sale at retail. Exemptions exist for alcoholic beverages, food sold in restaurants and milk and meat from animals that ate GMO feed. The Seattle Times has excellent “Pro” and “Con” articles on this issue. Please take a read.
I have written before about Jack Daniel’s efforts to protect the iconic design of the label and bottle for its Tennessee Whiskey. Now, Jack Daniel’s has filed suit against J&M Concepts, LLC and Popcorn Sutton Distilling, LLC for infringement this”famous” trade dress which is allegedly embodied in, among other things, several trademark registrations with the USPTO. The Defendants’ produce “Popcorn Sutton’s Tennessee White Whiskey,” named after Marvin “Popcorn” Sutton (“Sutton”), a Appalachian moonshiner.
As alleged in the Complaint:
At some point in 2012, Defendants developed new packaging for Popcorn Sutton’s Tennessee whiskey that embodied a dramatically different trade dress for the product. …. This new packaging embodies trade dress featuring a combination of a square-shaped bottle with angled shoulders that house a signature and beveled comers, and labeling with a white-on-black color scheme, filigree designs, and a font style reminiscent of that of the Jack Daniel’s Trade Dress.
Accordingly, Jack Daniel’s alleges that Defendants’ product “is likely to cause purchasers and prospective purchasers of the product to believe mistakenly that it is a new Tennessee white whiskey product in the Jack Daniel’s line, that it is licensed or authorized by [Jack Daniel's], and/or that there is a business relationship, affiliation, connection, or association between Defendants and [Jack Daniel's].” Based on this core allegation, claims are asserted for trademark infringement, unfair competition and deceptive trade practices.
The U.S. Chamber Institute for Legal Reform (“ILR,” an affiliate of the U.S. Chamber of Commerce) has released a new report called The New Lawsuit Ecosystem: Trends, Targets and Players that includes a section devoted to “Food Class Action Litigation.” ILR’s stated mission is to ”restore balance, ensure justice, and maintain integrity within the civil legal system.” And ILR pulls no punches in asserting that the recent surge in food class action litigation is “lawyer driven” and generally involves questionable accusations.
Some groups use these lawsuits to pursue their own political agendas when they cannot achieve their goals by legitimate means through elected officials or regulatory agencies. Others are just looking for the next “deep pocket.” While some plaintiffs’ lawyers win lucrative fees, consumers are saddled with higher prices and fewer choices as a result of litigation by the self-anointed food police
Putting aside the strong viewpoint, the report is an excellent summary of the “unprecedented surge in consumer class actions against food manufacturers.” Please see the complete report here.
As previously reported on this blog, Kraft Foods filed suit against Cracker Barrel Old Country Store, Inc. (“CBOCS”) on January 31, 2013 in light of the latter’s plan to use the CRACKER BARREL trademark on products such as ham, bacon, lunch meats, and summer sausage in a broad retail outlets including grocery and club stores.
On July 1st, Judge Gettleman of the Northern District of Illinois granted Kraft’s motion for a preliminary injunction and enjoined CBOCS “from manufacturing, advertising, distributing, shipping, promoting, offering for sale, selling or licensing third parties … to use the Cracker Barrel mark on food products in retail or wholesale trade other than through CBOCS’ traditional trade channels consisting of CBOCS’ restaurants, adjoining CBOCS stores, CBOCS catalogues, CBOCS’ internet site, and CBOCS gift cards as currently distributed.”
Now, the parties have reached an agreement that allows CBOCS to ship its first products through other retail stores, but not under the “Cracker Barrel” name. Instead, it will use the mark “CB Old Country Store.”
Despite this agreement, the lawsuit is still moving forward as the parties continue to dispute whether Cracker Barrel’s expansion of use is an impermissible expansion to new retail channels or within its natural zone of expansion.