Wal-Mart Seeks Dismissal of “Pork and Beans” False Advertising Lawsuit

On October 7, 2015, a putative class action lawsuit was filed against Wal-Mart Stores Inc. and Wal-Mart Stores East, LP (collectively “Wal-Mart”) in the U.S. District Court for the Central District of California.  The lawsuit alleges breach of warranty, unjust enrichment, and violations of California, Pennsylvania and New Jersey law.

Plaintiffs allege that Wal-Mart’s store-brand Great Value Pork and Beans in Tomato Sauce does not actually contain pork. They allege that “rigorous scientific testing, including microscopic and chemical analysis, has revealed that the product contains no pork whatsoever” and that the labels for each and every can of these products is false and misleading.

On January 27, 2016, Wal-Mart filed a motion to dismiss the complaint, asserting that “Plaintiffs concede that the label on Great Value Pork & Beans in Tomato Sauce states very clearly that the product ‘contains less than 2%’ of pork” and that Plaintiff’s test results are therefore not surprising.  Wal-Mart’s motion continues:

If Plaintiffs relied on testing that was not sensitive enough to detect an ingredient that was less than 2% of a product, then the fact that their testing failed to detect pork does not mean that pork is not an ingredient in the product at issue. Thus, without more detail, Plaintiffs’ allegation – that because their testing was unable to detect pork in the product means it does not contain pork – is logically fallacious, an invalid inference.

Put differently, Wal-Mart alleges that the Complaint is too vague and conclusory with regard to the testing that allegedly occurred.  Wal-Mart further argues:

In essence, at least as currently pled, Plaintiffs are alleging that the product at issue does not contain enough pork to use the name “Great Value Pork & Beans in Tomato Sauce.” But such an allegation is preempted – federal law mandates that this product include the work “pork” in its title if it contains any pork.

Thus, Wal-Mart’s motion is based on two key arguments.  First, that Plaintiffs’ allegation about testing lacks specificity and is thus not facially plausible because it does not plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”  In this regard, Wal-Mart ties its argument to Plaintiffs’ alleged concession that the product contains less than 2% pork but fails to include allegations regarding the sensitivity of the alleged testing.  Second, Wal-Mart notes that Plaintiffs’ Complaint refers to FDA documents that establish that “pork and beans” is the “common or usual name of canned beans packed in sauce and that has been prepared with even relatively small quantities of pork.”  Accordingly, Wal-Mart argues that, so long as its product includes very small quantities of pork, federal regulations necessarily require that it be labeled as “pork and beans” and Plaintiffs’ claims are thus preempted.  In fact, Wal-Mart specifically argues that “the [Nutrition Labeling and Education Act of 1990] actually requires Wal-Mart to label its Pork & Beans product as ‘pork and beans’ because that is the ‘usual or common name’ of the product.”

This case is definitely worth watching and I’ll provide an update with the court’s ultimate ruling.

Update: FDA Approves “Just Mayo” Label

I’ve previously written about Hampton Creek’s JUST MAYO product that has been the target of a lawsuit and an FDA warning letter because the brand name did not meet the federally-regulated standard of identity for mayonnaise, which requires it contain eggs.  But the FDA has now agreed to approve a revised version of the label that retains the brand name so long as the phrase “egg-free” is higher on the label and in larger font, and it includes the phrase “spread and dressing.”  Please see my comments on this development in Food Navigator’s article here.

It’s Been Re-Confirmed – Recipes are not Subject to Copyright Protection

The Sixth Circuit Court of Appeals has re-confirmed, once again, that recipes are not subject to copyright protection.  The ruling originated from a suit filed by Rosemarie Carroll against Larry Moore and others for copyright infringement and other state law claims associated with a restaurant and catering business that Carroll and Moore previously co-owned.  In that prior venture, Moore conceived and developed the recipes for the menu.  In 2007, Carroll and Moore parted ways with Carroll purchasing Moore’s interest in the businesses and with Moore signing an agreement which specified that Moore return “all originals and copies of . . . menu files and development ideas, recipes (current and historical) and training tools.”

Subsequently, Carroll created and obtained a registered copyright on the “Tomaydo-Tomahhdo Recipe Book” that was assembled based on the recipes that Moore developed for the restaurant.  In the lawsuit, Carroll alleged that Moore and other defendants copied the recipes and used them for their catering business.

On October 20, 2015, the Sixth Circuit upheld the district court’s dismissal of the copyright claim finding that the cookbook was not creative enough for protection.  At the outset, the Sixth Circuit noted that the cookbook was a compilation and only subject to copyright protection if it is original, meaning that it has some creative aspect.

Plaintiff argued that its recipe book was creative because (1) Moore’s trial-and-error process for developing recipes embodies the selection, coordination, and arrangement necessary to demonstrate creativity, and (2) its menu was purposefully ordered a particular way, each item on the menu existed because Carroll and Moore specifically chose it, and the items were chosen in coordination with each other.

Both arguments were rejected.  The Sixth Circuit’s ruling was anchored to the long-standing rule that the recipes themselves do not enjoy copyright projection because the list of ingredients is merely a factual statement.  And a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection pursuant to 17 U.S.C. § 102(b).  Given that, the court found that plaintiff did not point to anything demonstrating that the recipe book is an original compilation.  With respect to purposefully selecting and arranging the menu items, the Court noted that Carroll never identified what is original and creative about that process.  Rather, that argument merely characterized how recipes are developed and further perfected.  The court further held that plaintiff’s assertion that the menu items are purposefully coordinated with each other was doomed because she never identified any creative manner by which they are.  Accordingly, the plaintiff had no copyright interest in the book.

Notably, courts have found that cookbooks can be copyrighted as original compilations if authors “lace their directions for producing dishes” with creative content such as stories about times the dish was made.

Welch’s Fruit Snacks Violate “Jelly Bean Rule” Alleges New Class Action Lawsuit

A class action lawsuit has been filed against Welch Foods, Inc. alleging that it is misrepresenting the fruit content and the nutritional and health qualities of its fruit snacks.  The case was filed on September 18, 2015 and is pending as case no. 1:15-cv-05405 in the U.S. District Court for the Eastern District of New York.

Specifically, plaintiffs allege that Welch deceived consumers by suggesting that Welch’s Fruit Snacks contain significant amounts of the fruits depicted in the marketing and on the labeling of the products, are nutritious and healthful to consume, and are more healthful than similar products.  In this regard, plaintiffs highlight that the product labels include the claim that the Fruit Snacks are “Made With REAL Fruit” and include images “of the characterizing fruit.”  Moreover, they allege that claims such as contains “100% Vitamin C,” “25% Vitamins A & E,” and “no preservatives” are representations that the Fruit Snacks are healthy.

But the products are not healthy, according to plaintiffs, because the products allegedly “contain only minimal amounts of the vibrantly depicted fruits, and are no more healthful than candy.”  Those depicted fruits, plaintiffs allege, “are not the predominant ingredient or even the most prominent fruit in the” Fruit Snacks which actually “contain significant amounts of sweeteners and added sugars, as well as artificial flavors and artificial colors.”

Notably, Plaintiff’s specifically alleged that the Fruit Snacks or misbranded under FDA regulations because Welch fails to display the true percentage of the fruits used in the product name on the front label in violation of 21 C.F.R. §102.5(b).  That provision requires a product to “include the percentage(s) of any characterizing ingredient(s) or component(s) when the proportion of such ingredient(s) or component(s) in the food has a material bearing on price or consumer acceptance or when the labeling or the appearance of the food may otherwise create an erroneous impression that such ingredient(s) or component(s) is present in an amount greater than is actually the case.”

In addition, Plaintiff’s assert that the Fruit Snacks violate the FDA’s Fortification Policy (known as the “jelly bean rule”) which provides that the FDA “does not encourage indiscriminate addition of nutrients to foods, nor does it consider it appropriate to fortify . . . sugars; or snack foods such as candies . . . .”  21 C.F.R. §104.20(a).   In this regard, Plaintiffs further allege that if Welch “had not … fortified the Fruit Snacks with vitamins A, C, and E, they could not claim that these sugary snacks were a nutritious, vitamin-rich food.”

In response to the Complaint’s allegations, Promotion in Motion, which makes the snacks under license for Welch Foods,  issued the following statement: “It is a fact that fruit, whether in the form of juices or more recently purees, has always been the first ingredient in Welch’s Fruit Snacks.  Our labeling is truthful and gives consumers the information they need to make informed decisions.  For nearly 15 years, we have been proud to bring consumers snacks made with the highest quality ingredients, that consistently meet and even exceed quality standards and FDA regulation.”

This case underscores the continuing risks associated with marketing products that include real fruit (including fruit juices) but also added sugar and other ingredients.  Food companies naturally want to include imagery highlighting the fruit flavors associated with a product and highlight that the products include real fruit.  And fortification can help make a product more healthy and attractive to consumers.  On the other hand, plaintiff’s attorneys are quick to attack such marketing as detailed above.  This case also has echoes of the  class action over Coca-Cola’s Vitaminwater which settled last year, where the central allegation was that the product’s name and labeling were misleading because many of the flavors contained negligible amounts of fruit juice and were predominantly made up of water and sugar.

Chipotle Hit with Class Action on use of GMO Ingredients

GMO-Chipotle

After several years of primarily filing suit against packaged food companies, a recently-filed lawsuit is targeting Chipotle Mexican Grill, Inc. for allegedly falsely labeling its menu as GMO free.  In the Complaint, plaintiff sets forth how Chipotle launched a “Food with Integrity” program as part of its “carefully tailored … public image” to market to “healthy-lifestyle and environmentally conscious consumers that it knows are willing to pay premium prices for its food products because they align with the consumers’ ethical eating choices.”  In April 2015, Plaintiff alleges, Chipotle “capitalized on this perception” by taking “the unprecedented step among fast-food restaurants [of] launching a multi-media publicity campaign touting that it was the ‘first national company’ in the food industry to serve a menu devoid of GMOs.”

Plaintiff claims that the foregoing marketing statements were false because:

Among other things, Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy.  Chipotle’s tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs. And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn-syrup—a GMO.  While Chipotle knows that its menu contains ingredients with GMOs, it takes no meaningful steps to clarify consumer misconceptions in its advertisements and on its billboards, both in stores and in print, which instead say “all” of the ingredients used in its Food Products are “non-GMO”.

Notably, plaintiff minimizes disclaimers on Chipotle’s website which state that “there is currently not a viable supply of responsibly raised meats and dairy from animals raised without GMO feed.”  Specifically, plaintiff asserts that “Chipotle only discloses this information on its website because it knows its fast-food customers never need to visit Chipotle’s website to buy food, and are highly unlikely to seek out this information” and that consumers are instead “likely to rely on Chipotle’s internet, mass media, and in-store advertising ….”

And, of course, plaintiff alleges that,”[h]ad they known of the true character and quality of the ingredients used in Chipotle’s Food Products, Plaintiff and the putative class members would not have purchased (or would have paid less for) such products.”

Putting aside whether this lawsuit has merit, it serves as an important reminder that restaurants and even grocery stores are potential targets for litigation and must carefully review their marketing and in-store signage for statements that might increase their risk of being sued.

My Comments on the Blue Diamond “Almond Milk” Class Action Suit.

Blue Diamond Growers has been targeted in a class action lawsuit alleging that its “almond milk” products mislead consumers because they only contain 2% almond milk.  I provided some thoughts on this case to FoodNavigator-USA, which can be found here.

Update: Settlement Reached in Lawsuit Over Templeton Rye Whiskey

I previously wrote about a complaint filed in Illinois state court on September 9, 2014, that alleged that Templeton Rye’s engaged in deceptive marketing by claiming that its namesake rye whiskey is “Made in Iowa” using small-scale production methods and is produced pursuant to “a prohibition-era whiskey recipe.”  Plaintiff alleged that, contrary to these representations, the whiskey is actually mass produced and aged in Indiana using a stock recipe” and “the only activity that occurs in Iowa is the emptying of the barrels and the filling of the bottles….”

The Des Moines Register is now reporting that a settlement was reached that “requires the company to change labeling on its bottles and the language on its website” and also “requires Templeton Rye to set aside a cash pool that could be used to refund customers who bought bottles of the whiskey.”

Templeton Rye’s website presently states that the product is “based on” a prohibition-era recipe and there is no reference to the product being “Made in Iowa.”  These changes will no doubt carry over to the product’s label which will likely state that the product is “Distilled in Indiana” and “Bottled” and/or “Produced in Iowa.”