Monthly Archives: July 2015

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.”

Coca-Cola Denied Summary Judgment in Class Action Over Minute Maid Pomegranate Blueberry Juice Blend

JuiceBlend

On Monday, a California federal judge rejected Coca-Cola’s motion for summary judgment in a putative class action over the allegedly misleading marketing of its Minute Maid Enhanced Pomegranate Blueberry juice blend.  The court’s ruling was based, in part, on the Supreme Court’s 8-0 ruling last year in POM Wonderful v. Coca-Cola.   As that case highlighted, despite the name of the product and the label’s display of pomegranates and blueberries (along with raspberries), those fruits made up only 0.6% of the juice’s content.  Coca-Cola discontinued this product sometime over the past year.

The class action lawsuit was filed in 2009 but was stayed for approximately four years as POM Wonderful v. Coca-Cola made its way through the appeals process.  The key allegations from the lawsuit are the following:

By characterizing this product as “Pomegranate Blueberry” on the front and back label, including the prominent display of a pomegranate and blueberries on the front label, emphasizing the “antioxidants” which will help defend against “free radicals” on the back label, and creating an artificially darkened juice, Coca-Cola misled Plaintiff and other consumers, who reasonably expected that the juice product was an antioxidant-rich product consisting primarily of pomegranate and blueberry juices when they purchased the product.

Plaintiff’s state law claims are aimed at the features of the naming and labeling which are voluntary, and not required by the FDA regulations, which Coca-Cola selected in order to maximize the label’s deceptive impact upon Plaintiff and other members of the Class.

In its motion for summary judgment, Coca- Cola correctly pointed out that the express preemption provision of the Food Drug and Cosmetic Act’s (“FDCA”) was not at issue in POM Wonderful because that case involved Lanham Act claims under federal law.  That provision provides that “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce . . . any requirement for the labeling of food of the type required by” various sections of the FDCA “that is not identical to the requirement of such section . . . .”  Coca-Cola asserted that the Plaintiff’s state law claims were preempted because the labeling rules Plaintiff argues should apply have not been adopted by the FDA and therefore any resulting violation of state law could not possibly constitute “identical” obligations to the FDCA.

The Court, however, rejected that argument in light of recent district court cases finding that the FDCA’s proscription of statements that are “false or misleading in any particular” is broad enough that it is effectively identical to similar proscriptions in state law.  In this regard, the Court stated:

Further, the Supreme Court’s later opinion in POM Wonderful, though addressing the issue of preclusion rather than preemption, explicitly rejected the “[assumption] that the FDCA and its regulations are at least in some  circumstances a ceiling on the regulation of food and beverage labeling.”

Accordingly, the Court denied Coca-Cola’s argument that the state law claims were expressly preempted by the FDCA.

Needless to say, this case, along with the recent precedent it cites, suggests a new path exists for class action plaintiffs to assert state law claims amenable to class action status while avoiding the express preemption provision of the FDCA.

Q&A with Food Business News on Clean Label Claims and other Hot Topics

It was my pleasure to participate in a Q&A with Food Business News on clean label claims and a other hot topics.   Please see here.