Category Archives: Front-of-Package Claims

Kind Snack Bars Hit with Putative Class Action Following FDA Warning Letter Over “Healthy” Claims

It was about as surprising as gridlock in Washington D.C. when a putative class action was filed yesterday (April 22) against Kind LLC following an FDA warning letter dated April 17th regarding alleged “healthy” claims on Kind’s snack bars.

In the warning letter, the FDA asserted that the labels of certain Kind snack bars  bear the claim “Healthy and tasty, convenient and wholesome” in connection with statements such as “good source of fiber,” “no trans fats,” “very low sodium” and “+ antioxidants.”  The FDA stated, however, that none of those products “meet the requirements for use of the nutrient content claim ‘healthy’ that are set forth in 21 CFR 101.65(d)(2).”

To no one’s surprise, less than a week after the warning letter, a putative class action lawsuit was filed that piggy-backed off the FDA warning letter.  In the Kind Lawsuit, plaintiff Charity Bustamante simply contends that certain Kind snack bars “are misbranded in violation of the Federal Food, Drug and Cosmetic Act … for the reasons set forth in a warning letter that the FDA sent to Defendant on or about March 17, 2015.”

In addition, plaintiff alleges that Kind LLC “falsely and prominently labels [certain Kind snack bars] as ‘All Natural’ and ‘Non GMO,’ while manufacturing the Products with genetically modified and non-natural, highly processed ingredients including soy lecithin, soy protein isolate, and canola oil.”

Based on these allegations, the plaintiff asserts the usual claims for: (1) breach of express warranties; (2) violations of California’s Consumers Legal Remedies Act; (3) violations of California’s False Advertising Law; and (4) violations of California’s Unfair Competition Law.  Please see the entire Complaint here.

Just last month, a putative class action against Kind LLC was dismissed with prejudice that involved “no refined sugars” claims on its Healthy Grains products.  In light of the FDA warning letter in the recently-filed case, however, obtaining a similar ruling in the early stages will be more difficult.

Unilever: “Just Mayo” Misleads Consumers Because It’s Not “Mayo”

Unilever owns the Hellmann’s® and Best Food’s® brands of mayonnaise.  On October 31, 2014, Unilever filed suit in the U.S. District Court in New Jersey against Hampton Creek, Inc. for false advertising and unfair competition for selling an egg-free spread under the brand name “Just Mayo.” According to Unilever, the lack of any eggs in the product precludes it from being labeled as “mayonnaise” under federal regulations and consumers are further misled in this regard by the egg on the product label.  As alleged in the Complaint:

“Mayo” is defined in the dictionary and in common usage as “mayonnaise.”  Under federal regulations, common dictionary definitions and as consumers understand it, “mayonnaise” or “mayo” is a product that contains eggs. That ingredient does not exist in Just Mayo.  By calling its vegan sandwich spread Just Mayo, Hampton Creek falsely communicates to consumers that Just Mayo is mayonnaise, when it in fact, it is not.  The literally false product name is highlighted on the label, which also features a giant image of an egg … and in advertising for Just Mayo.

Finally, Unilever complains that comparisons made by Hampton Creek claiming that JUST MAYO tastes better and is superior to “real” mayonnaise, including Hellmann’s, are unsubstantiated and part of its “larger campaign and pattern of unfair competition.”

The JUST MAYO brand is a rising newcomer in this market segment.  As noted by the Wall Street Journal, “Hampton Creek, founded three years ago, has raised $30 million from investors including Microsoft co-founder Bill Gates for its vision of making plant-based substitutes for common egg-based products that it says are healthier and more environmentally friendly.”  The lawsuit has inspired a petition on Change.org asking Unilever to “stop bullying sustainable food companies” which has more than 16,000 supporters as of November 11th.

Although certain blogs have labeled the lawsuit frivolous, it is highly doubtful that Hampton Creek can have the claims dismissed as a matter of law.  Rather, the case will likely move forward and hinge on the ultimate question of whether the “Just Mayo” label and associated marketing  includes one or more false or misleading statements of fact that actual deceived or has the tendency to deceive a substantial segment of consumers and influence the purchasing decisions of consumers.

Significantly, this case underscores the dangers of creating and investing in an attractive but risky brand name.  It is undisputed that the FDS’s standard of identity defines mayonnaise as “the emulsified semi-solid food prepared from vegetable oil(s),” an “acidifying” ingredient of either (1) vinegar or (2) lemon juice or lime juice, or both, and an “egg yolk-containing” ingredient.  21 C.F.R. § 169.140.   Thus, by naming an egg-free product “Just Mayo,” there was always a risk that it would be accused of deceiving consumers.

UPDATE:  I was just quoted in connection with this lawsuit on FoodNavigator-USA — see here.

Muscle Milk Target of Another False Advertising Claim

Muscle-Milk

Cytosport, Inc., maker of MUSCLE MILK protein shake products, is the target of a false advertising claim under the Lanham Act brought by Global Beverage Enterprises, Inc. which markets beverages under brand names such as MR. Q. CUMBER and SWEET BLOSSOM.  Although Global Beverage’s products are not protein shakes, it alleges that its beverages are displayed alongside MUSCLE MILK roducts in the same beverage coolers at Fresh Market s

Global Beverage claims that the Cytosport products are misleading because they prominently display the term MUSCLE MILK even though they do not contain milk and that this has the effect of suggesting to consumers that its products  “are healthier beverages when compared to competitor’s products, including the Plaintiff’s products.”  Global Beverage asserts that these “deceptive efforts” include marketing products (i) in flavors traditionally associated with milk such as ‘chocolate’ and ‘chocolate malt’ and terms traditionally associated with milk as ‘chocolate malt’ and ‘shake'” and (ii) as  “lactose free” which is a phrase “that would only be associated with a product containing milk.”

This case is noteworthy for two key reasons.  First, Global Beverage’s products are not protein shakes or milk products which undermines its allegation that it is harmed by the marketing of Cytosport’s products.  In this regard, Global Beverage alleges that its beverages are displayed alongside MUSCLE MILK products in the same beverage coolers at Fresh Market stores nationwide and that they therefore “compete.”  Pursuant to recent Supreme Court precedent, a plaintiff has standing to bring false advertising claims under the Lanham Act if can (1) allege an injury to a commercial interest in reputation or sales; and (2) show that such injury was proximately caused by defendant’s misrepresentations.   Because it does not appear that the parties’ products are directly competitive, both of these elements are likely to be tested in this litigation.

Second, as shown in the above image taken from Global Beverage’s complaint, MUSCLE MILK products include the statements “contains no milk” and “includes milk proteins” directly below the product name on the front label.  In  2010, the Federal Trade Commission (FTC) reviewed the use of “Muscle Milk” in connection with the “contains no milk” disclaimer and found the label was not deceptive to consumers.  One year later, the FDA took a different view and sent Cytosport a warning letter stating that the MUSCLE MILK products are misbranded because they (a) prominently feature the word “MILK” but contain no milk with the actual statements of identity (“Protein Nutrition Shake” and “Nutritional Shake”) in significantly smaller and less prominent type and (b)  contain certain milk-derived ingredients but the “Contains No Milk” disclaimer could give consumers the impression that these products are free of milk-derived ingredient, which is especially relevant with respect to allergens.  Presumably, the “Includes Milk Proteins” statement directly below “Contains No Milk” was added in response to these concerns.

The lawsuit is pending as Case No. 0:14-cv-60950 in the U.S. District Court for the Southern District of Florida.

 

 

 

 

Trader Joe’s Settles “All Natural” Lawsuit for $3.4 Million

A federal judge has preliminarily approved a settlement in a class-action lawsuit in which Trader Joe’s was accused of falsely advertising certain cookies, cinnamon roles, “fresh pressed” apple juice and other products as “all-natural” when they contained ascorbic acid, potassium carbonate in the form of cocoa processed with alkali, vegetable mono and diglycerides, xanthan gum, and/or sodium acid pyrophosphate, all of which plaintiffs alleged are synthetic.

Notably, plaintiffs cited the following statement in their Complaint that had been on the FAQ section of the Trader Joe’s website.

If you see Trader Joe’s on a label, then you can know that the product contains NO artificial flavors, colors or preservatives; NO genetically modified ingredients; NO MSG; and NO added Trans Fats. What does it contain?  Quality

Under the proposed settlement, Trader Joe’s will establish a settlement fund of $3.375 million from which class member may receive payment for the average price of the purchased goods.  Trade Joe’s has also agreed to stop advertising the products as “all-natural.”

Coca-Cola Target of Class Action Lawsuits Regarding Phosphoric Acid

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.

ILR: Unprecedented Surge in Consumer Class Action Suits Against Food Manufacturers

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.

Judge Dismisses “Ridiculous” Real Fruit Claims Against Nabisco

Last week, U.S. District Court Judge William Alsup dismissed with prejudice a putative class action complaint against Mondeléz International Inc., d/b/a Nabisco.   The Complaint alleged that the plaintiff  purchased strawberry and raspberry Newton cookies and relied on the labeling and advertising displayed on the front packaging, namely that the products were “made with real fruit.”  Plaintiff alleged that she interpreted the statement “made with real fruit” to mean that the products “contain[ed] real fruit — not merely mechanically processed fruit purée, which is not ‘real fruit.’ ”  As always, the Complaint further alleged that the plaintiff was economically damaged because she either would not have purchased, or would not have paid a “premium price” had she known it  contained processed fruit purée rather than “real fruit.”

The Court dismissed the plaintiff’s claims pursuant to Fed.R.Civ.P. 12(b)(6):

Plaintiff has not plausibly alleged why the statement “made with real fruit” would not include mechanically separated fruit purée.   This order agrees with the numerous decisions that have dismissed similar food labeling claims at the pleading stage.  Where, for example, a plaintiff challenged the use of the word “apple” in the name of an Apple Straws product that contained puréed apples and “veggies” in a product made  primarily of potatoes, the claim was rejected.  ****

[In sum], [t]he complaint has  failed to allege why real strawberries and raspberries in their puréed form are no longer “real  fruit.”   It is ridiculous to say that consumers would expect snack food “made with real fruit” to  contain only “actual strawberries or raspberries,” rather than these fruits in a form amenable to being squeezed inside a Newton.

Please see the entire ruling here.