Tag Archives: class action

Judge Dismisses AriZona “All Natural” Lawsuit

Posted on April 6, 2013 | Leave a comment

Three years ago, AriZona Beverage Co. was hit with a class action lawsuit challenging its marketing and selling of iced tea beverages labeled “All Natural,” “100% Natural,” and “Natural” because they contain high fructose corn syrup (HFCS) and citric acid — which are allegedly artificial and man-made.   Class certification was allowed under Rule 23(b)(2) for purposes of injunctive 
and declaratory relief.  But on March 28, 2013,  U.S. District Court Judge Seeborg (N.D. Cal.)  granted AriZona’s renewed motion for summary judgment and class decertification.

Earlier in the case, plaintiffs had argued that it would “have experts that will line up and they’ll be able to show, pursuant to FDA regulation, that this is a chemical process, it’s not a biological process.”  But in response to the summary judgment motion, they simply asked the Court to “take judicial notice of United States Patent law,” and rule that that HFCS is not natural because patents have been issued for the process of producing it.  In a significant retort, the Court noted:

[Plaintiffs'] argument is that if HFCS were a naturally occurring substance such as “a new mineral discovered in the earth or a new plant found in the wild” it would not be patentable.  ….  “United States Patent law” is not a proper subject of judicial notice under Federal Rule of Evidence 201 and the request is denied.  Plaintiff’s request is properly characterized as an argument that HFCS is not natural as a matter of law.  But plaintiffs have cited no legal authority supporting their contention that if the process to produce an ingredient is patented, that fact, in and of itself, automatically renders it artificial.  This is merely an extension of their rhetoric that HFCS is artificial because it “cannot be grown in a garden or field, it cannot be plucked from a tree, and it cannot be found in the oceans or seas of this planet.”  ….  In the face of a motion for summary judgment, rhetoric is no substitute for evidence.

The Court then turned to the issue of whether the labels may nevertheless be misleading because AriZona admitted it changed its labels to add the language “All Natural Tea,” “No Preservatives,” “No Artificial Color,” and “No Artificial Flavor” because some customers were confused by the terms 100% natural and asked “100% natural what?”  Plaintiffs argued that this was an admission that the labels were confusing.  The Court rejected that argument, noting that this “admission” simply indicated that “everything in” the beverages is natural, and “that defendants included the additional claims on the labels specifying that they contain all natural tea without preservatives, artificial color, and artificial flavor to clarify that to confused customers.”

Next, the Court also noted that “plaintiffs have no evidence to support their prayer for restitution and disgorgement” and did not “offer not a scintilla of evidence from which a finder of fact could determine the amount of restitution or disgorgement to which plaintiffs might be entitled if this case were to proceed to trial.”

Finally, the Court sternly criticized plaintiffs’ counsel in the context of decertifying the class, noting that they had “been dilatory and has failed to prosecute this action adequately.”

Please see complete ruling here.

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Posted in Labeling, Natural Claims

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Plaintiffs Join Forces in Class Action Suit Against Chobani for “Evaporated Cane Juice” and “All Natural Ingredients” Claim

Posted on October 14, 2012 | Leave a comment

FoodNavigator-USA reported that two plaintiffs dismissed their class action lawsuits against Greek yogurt manufacture Chobani, Inc. in order to combine forces as part of a third lawsuit pending in the Northern District of California.  At that venue, the combined Plaintiffs filed a Second Amended Complaint on October 10, 2012 targeting Chobani’s allegedly improper use of the term  (1) “evaporated cane juice” to describe sugar in the ingredient list and (2) “natural” to describe a product that uses natural color additives.

Specifically, Plaintiffs broadly allege that Chobani responded to consumers’ desire for natural and nutritious foods by “actively promoting the naturalness and health benefits of its products.”   On this point, Plaintiffs cite virtually every statement made by Chobani on its labels, advertising and website relating to the “purported naturalness, nutritional, and health qualities of its yogurt products.”  Plaintiffs then allege that such claims are false and deceptive, and the yogurt products misbranded, for two reasons.

First, Plaintiffs allege that Chobani lists “Evaporated Cane Juice” as an ingredient “despite the fact that the FDA has specifically warned companies not to use this term” and, further, that this (1) “the ingredient in question is not a ‘juice,’” and (2) “evaporated cane juice” is not listed in the FDA’s Standard of Identity for yogurt (21 CFR § 131.200) as an allowed nutritive carbohydrate sweetener.  This alleged “deception” is “material,” Plaintiffs allege, because approximately one-third of the product’s calories comes from this ingredient, i.e., “processed sugar with no nutritional benefit.”   It is unclear, however, whether all of those calories come from the “evaporated cane juice” or if some is naturally occurring lactose (i.e., “milk sugar”).

Second, Plaintiffs contend that “[s]ome of Chobani’s Greek Yogurt flavors are unlawfully labeled as ‘all natural’ and/or ‘only natural’ [because they are] artificially colored and/or containing unnatural ingredient including, by way of example, the pomegranate flavor which artificially colors the yogurt product with ‘fruit or vegetable juice concentrate.’”  In this regard, Plaintiffs note that color additives under 21 C.F.R. 70.3(f) are “artificial colors” and include “natural” ingredients “such as beet juice [when] deliberately used as a color, as in pink lemonade.”  Notably, however, Chobani does not appear to have made a blanket “all natural” claim but instead stated that its products contain “only natural ingredients” and contained “no artificial sweeteners” and “no preservatives.”  This qualification will likely be crucial as the case moves forward.

You can read the Second Amended Complaint here.

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Posted in Front-of-Package Litigation, Natural Claims

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Lawsuit Over Benecol “Cholesterol-Busting” Spread Dismissed

Posted on September 28, 2012 | Leave a comment

As reported by FoodNavigator-USA , a federal judge has dismissed a proposed class action lawsuit against Johnson & Johnson and McNeil Nutritionals over the labeling and marketing of the “cholesterol-busting” spread Bencol.   The lawsuit was filed last June and alleged that Benecol misled consumers because, at 0.85 g per serving, it contained insufficient plant stanol esters to merit the relevant health claims.   It was also alleged that the claim “proven to reduce cholesterol” rendered the product a drug and not a food.

Generally, the court found that plaintiffs claims were preempted because the FDA  issued a statement in 2003 allowing use of the claim in connection with products containing lesser amounts of phytosterols (at least 400mg per serving), and that “Federal agency action short of formal notice and comment rulemaking can preempt state law.”  Please see the full article here.

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Posted in False Advertising, Front-of-Package Litigation, Uncategorized

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Dannon Calls New Lawsuit Targeting Activia Yogurt “Baseless”

Posted on September 20, 2012 | Leave a comment

 

According to FoodNavigator-USA, The Dannon Company, Inc. has labeled a new class action complaint targeting its Activia yogurt as “poorly informed and frivolous.”  The class action plaintiff alleges that Activia includes Milk Protein Concentrate (“MPC”), added water and filler materials that are prohibited by the Standards of Identity for yogurt products promulgated by FDA under 21 C.F.R. 131.200, 131.203.   Dannon counters that food companies have been adding MPCs under the direction of the FDA since 1982 and that the the addition of MPCs is permitted in yogurts.   Evidently, the FDA’s regulations in this regard are in some flux but appear to favor Dannon.

Allegations in the complaint include the following:

  • Food starch, corn starch, gelatin, inulin, and xanthan gum are inexpensive filler materials. It is cheaper to add water and fillers than it is to use more milk.  Instead of making an authentic yogurt product, Dannon simply added water and fillers to increase Activia’s thickness and protein content.
  • Dannon’s conduct is not industry standard. The majority of yogurt brands in the U.S. do not add water, MPCs, and filler materials. Dannon intentionally added water and fillers to shortchange consumers.  …. [I]t is not necessary to add MPCs and filler materials to yogurt. Most domestic manufacturers do not add MPCs, and there is no plausible reason why these ingredients are needed to make yogurt.

This case is pending as Conroy v. The Dannon Company, Inc., Case No. 12-cv-6901 in the Southern District of New York.  Please see the full report by FoodNavigator-USA here and the class action complaint here.

 

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Lawyers From Suits Against Big Tobacco Target Food Makers

Posted on August 18, 2012 | Leave a comment

 

The New York Times has an excellent article on some of the lawyers who are filing suits against the food industry after having success with similar suits against big tobacco.  The following cuts to the heart of the matter and relates to many of the posts from this blog:

More than a dozen lawyers who took on the tobacco companies have filed 25 cases against industry players like ConAgra Foods, PepsiCo, Heinz, General Mills and Chobani that stock pantry shelves and refrigerators across America.   The suits, filed over the last four months, assert that food makers are misleading consumers and violating federal regulations by wrongly labeling products and ingredients.  While there has been a barrage of litigation against the industry in recent years, the tobacco lawyers are moving particularly aggressively.  ….

“It’s a crime — and that makes it a crime to sell it,” said Mr. Barrett, citing what he contends is the mislabeling of those products. “That means these products should be taken off the shelves.”

Please read the entire article here.

 

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Posted in Front-of-Package Litigation, Labeling

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ConAgra Sued for False Advertising Over Parkay Spray butter substitute

Posted on August 17, 2012 | Leave a comment

A woman has filed a complaint against ConAgra Foods in U.S. District Court for the District of Nebraska and, as always, is seeking class action certification.  Plaintiff alleges that, although ConAgra’s Parkay Spray butter substitute is advertised as “fat free” and “calorie free,” it “contains 832 calories and 93 grams of fat per bottle.”  According to the Parkay website, the “Servings Per Container” on the bottle’s Nutrition Facts panel is “about 226 sprays” with a serving size being 5 sprays.  Plaintiff, however, alleges that these “product labels include artificially small ‘serving sizes’ that fail to account for the manner in which these products are customarily consumed.”  ConAgra’s advertisements are thus false because, according to the Complaint, the product “contains ingredients that are fats which, even in small quantities, add trivial amounts of fat per serving.”

Notably, plaintiff alleges that ConAgra’s labeling directly violates the FDA’s regulatory scheme by providing a smaller “serving size” than the amount of food “customarily consumed at one eating occasion” based on “consumption data under actual conditions of use” as required under C.F.R. §§101.9(b)(1).  Based on that contention, Plaintiff further alleges that ConAgra “made unlawful ‘fat free’ and ‘calorie free’ nutrient content claims” because a “product that uses unlawful serving sizes cannot claim to be ‘fat free’ or ‘calorie free.’  21 C.F.R. §101.62(a)(3); 21 C.F.R. §101.60)a)(3).”

Finally, Plaintiff alleges that Con Agra was aware that its Parkay Spray was mislabeled based on consumer complaints and an FDA guidance letter from March 2005 that “reminded” the food industry about the importance of accurately determining proper serving sizes for their products.  The Complaint includes eight different claims with the primary claims alleging violations of Nebraska’s Consumer Protection Act and Uniform Deceptive Trade Practices Act.  See the entire Complaint here.

This will be an interesting case to watch because Plaintiff cannot prevail  if ConAgra shows that it properly complied with FDA regulations on calculating serving size.

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My Article in Food Processing Magazine: “Nutella Lawsuit Highlights Marketing Risks”

Posted on August 2, 2012 | Leave a comment

Please see my article from the August issue of Food Processing magazine:  Nutella Lawsuit Highlights Marketing Risks.

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Posted in Front-of-Package Litigation

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“No reasonable consumer would be misled by PepsiCo’s ‘all natural’ Claims” — Judge Dismisses Class Action Suit Over SoBe Lifewater Drink

Posted on June 1, 2012 | Leave a comment

Food companies received some good news regarding the recent onslaught of “all natural” class action litigation.  A federal judge has dismissed with prejudice the Complaint against PepsiCo and its subsidiary South Beach Beverage Co. (“SoBe”) over the claim that the SoBe Lifewater beverage is deceptively labeled as ”all natural.”   See complete ruling here.

The complaint — filed by the same law firm as the Jamba Juice class action suit –  asserted claims under California’s consumer protection laws (of course) alleging that (1) the “all natural” label is potentially deceptive because SoBe Lifewater contains ingredients that are “synthetic or created via chemical processing”; specifically,  ascorbic acid, cyanocobalamin, calcium pantothenate, niacinamide, pyrioxine hydrochloride, and xanthan gum; (2) the names of various fruits are used to describe the different flavors of Lifewater even though Lifewater does not contain any actual fruit or fruit juice, which is likely to deceive consumers into “believing that Defendants’ SoBe Beverages are, indeed, ‘All Natural’”; and (3) the use of the common vitamin name (e.g., B12) on the labels is misleading because the vitamins added to Lifewater are synthetic or created via chemical processing. 

The court ruled that the plaintiffs’ claims relating to the second and third points were both preempted.  Specifically, “FDA regulations explicitly permit manufacturers to use the name and images of a fruit on a product’s packaging to describe the characterizing flavor of the product even where the product does not contain any of that fruit, or contains no fruit at all.”   Likewise, 21 C.F.R.  § 101.9(c)(8)(v) recognizes that “Vitamin C” and “Ascorbic acid” are “synonym[s]” that may be used in the alternative in a product’s nutritional information labeling.

Significantly, the Court concluded that “Plaintiff cannot avoid preemption of these claims by arguing that his claim relates solely to Defendants’ ‘all natural’ representations and that he included his fruit name and vitamin name claims only as support for his ‘all natural’ claim” because that would “would effectively allow Plaintiff to avoid preemption of those claims, and would undermine the purpose of the federal labeling standards which includes avoiding a patchwork of different state standards.”

As for the “all natural” claim, the Court noted that “once the preempted statements regarding fruit names and vitamin labeling are removed, this claim is based on a single out-of-context phrase found in one component of Lifewater’s label”  — “all natural with vitamins.”   The court declined to consider the “all naturual” claim “in a vacuum” and concluded that ”no reasonable consumer would read the ‘all natural’ language as modifying the ‘with vitamins’ language and believe that the added vitamins are … ‘all natural vitamins.’”  

The court further held that, “to the extent there is any ambiguity, it is clarified by the detailed information contained in the ingredient list, which explains the exact contents of Lifewater.”   This last point is notable because of precedent holding that misleading front-of-package labeling will not be excused or “cured” by disclosures on the FDA-mandated ingredient list.  Here, however, the relevant claim was, at worst, ambiguous and it was therefore appropriate to consider the impact of the ingredient list on a reasonable consumer.  On this score, the court cited Williams v. Gerber for the proposition that “reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.”  552 F.3d 934, 939-40 (9th Cir. 2008).  

Although this ruling is relatively fact specific, it underscores that compliance with FDA labeling regulations can provide a safe harbor, of sorts, against various class pursued by class action attorneys.  More importantly, it takes the strong but very sound position that the ingredient list can dispel any ambiguities created by FOP claims.  

Note that this ruling is similar in to the ruling three weeks ago on another motion to dismiss in which a district court dismissed numerous claims on preemption grounds but held that General Mills must defend its “made with real fruit” claim for Fruit Roll-Ups.

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Posted in Front-of-Package Litigation, Natural Claims

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UPDATE: Some Claims Dismissed, But General Mills Must Defend “Made With Real Fruit” Statement

Posted on May 20, 2012 | 2 Comments

A recent post discussed the pending class action suit over General Mills’ Fruit Snacks.  A District Court judge in the Northern District of California has now ruled on General Mills’ Motion to Dismiss that lawsuit and dismissed with prejudice plaintiff’s claims to the extent they are based on statements that Fruit Snacks are “fruit flavored,” “naturally flavored,” and “gluten free.”  The Court let the lawsuit proceed, however, with regard to the statement “Made with Real Fruit.”  See complete Opinion here.

Specifically, the Court agreed with General Mills that any claim based on ”fruit flavored” and “naturally flavored” is preempted by the Nutrition Labeling and Education Act (“NLEA”) and, more specifically, the FDA labeling requirements promulgated under 21 U.S.C. § 343(k).  In discussing the relevant labeling requirements - 21 C.F.R § 101.22(i) – the Court stated:

[T]he regulation allows a producer to label a product as”natural strawberry flavored,” even if that product contains no strawberries.  While the regulation’s logic is troubling, the Court is bound to apply it.

Turning to the “gluten free” claim:

 [T]he Court [found] that the statement “gluten free” cannot support Plaintiff’s claims under [California's unfair business practices and false advertising laws].  The statement is objectively true and communicates nothing more than the absence of gluten in the product — a message used to convey the suitability of the Fruit Snacks to consumers with celiac disease and others who may wish to avoid gluten.  A reasonable consumer is unlikely to interpret the statement  ”gluten free” to mean that the Fruit Snacks contain no partially hydrogenated oils, low amounts of sugar or corn-syrup, or that the Fruit Snacks are otherwise healthful.

The Court had a different view, however, of the “made with real fruit” claim.  Plaintiff  alleged that the statement “made with real fruit” incorrectly describes the ingredients, which include partially hydrogenated oil, sugars in quantities amounting to approximately half of each serving and “pears from concentrate” rather than the fruit indicated by the name of the product.  For example, strawberry-flavored Fruit Roll-Ups contain no strawberries.

A reasonable consumer might make certain assumptions about the type and quantity of fruit in the Fruit Snacks based on the statement “made with real fruit,” along with other statements prominently featured on the products’ packaging.  For example, the statement “made with real fruit” appears in large and colorful letters on the side panel of the packaging of strawberry Fruit Roll-Ups.  Additionally, the word “strawberry” appears in large letters on the front, back, top, and bottom panels.  Taken together, these statements might lead a reasonable consumer to believe that product is made with real strawberries, not pears from concentrate.  The names “Fruit Roll-Ups” and “Fruit by the Foot,” along with the fanciful depiction of the products, which resemble fruit leather, may lead to further confusion about the Fruit Snacks’ ingredients.  After seeing these prominent aspects of the packaging, a reasonable consumer might be surprised to learn that a substantial portion of each serving of the Fruit Snacks consists of partially hydrogenated oil and sugars.

On the one hand, the rejection of certain statements by the Court  takes away some of plaintiff’s “ammunition” for arguing that the overall product labeling was deceptive to reasonable consumers.   On the other hand, the Court views the “Made with Real Fruit” statement, in combination with other aspects of the packaging, as more than sufficient for the jury to consider at trial.  It will be interesting to see how this case proceeds and how this ruling might impact any potential settlement discussions.

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Posted in Front-of-Package Claims, Front-of-Package Litigation

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Ferrero Settles Class Action Lawsuit Over Nutella Labeling and Advertising

Posted on May 2, 2012 | Leave a comment

Ferrero USA, Inc. has settled a class action suit filed against it over the marketing of Nutella by setting up a $3 Million fund for consumer claims and by agreeing to change it labeling and advertising of the product.

The case centered on the claim that Nutella’s ads and labeling misled consumers into believing that the tasty spread was healthy.  A chief target was the statement on the back of Nutella’s label stating that it is ”An example of a tasty yet balanced breakfast.”  In addition, television ads for Nutella touted that it has ”simple, quality ingredients like hazelnuts, skim milk and a hint of cocoa” but, not surprisingly, didn’t mention fat or sugar.  Based on its nutrition facts label, though, Nutella contains 10.9 grams of sugar per serving (close to 55% of the overall product) and 2 grams of saturated fat (from the palm oil for providing a nice, spreadable texture).   As typical in these cases, the Complaint cited every other piece of marketing (especially from Nutella’s website) that suggested that Nutella could be part of a healthy breakfast or that referenced ingredients like hazelnuts, skim milk and “a hint of cocoa” without also noting the sugar and saturated fat content.

The foregoing apparently gave the plaintiff’s claim enough bite to convince Ferrero that its best interests were served by a $3 Million settlement, notwithstanding the dubious claim that a reasonable consumer could be duped into believing that a sweet, chocolate-hazelnut spread  is healthy.

Here’s one of the commercials that Ferrero has agreed to stop running.

If there’s a key lesson from this case, it’s that food companies should rein in marketing efforts which imply that a product high in calories, added sugars, saturated fats and/or sodium is healthy, even if the individual statements are all literally true.  Notably, Ferrero has also agreed to add the “Facts Up Front” panels to Nutella’s label which should also dampen such claims in the future.

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Posted in False Advertising, Front-of-Package Litigation

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