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Category Archives: False Advertising Claims

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Northern District Judge Tosses “Evaporated Cane Juice” Food Misbranding Claims Against Whole Foods

Posted in False Advertising Claims, Misbranding, Preemption, Primary Jurisdiction

On March 31, 2014 Judge Edward J. Davila in the Northern District of California partially dismissed a lawsuit against Whole Foods Market alleging misleading labeling of its in-house “Everyday Value” products. The plaintiff claimed that he was deceived by the terms “evaporated cane juice” (ECJ) and “natural” on product labels. Although Judge Davila found that the plaintiff… Read More

Proposition 65 Hot Button Issue: Caramel Coloring in Soft Drinks

Posted in False Advertising Claims

Beverage companies PepsiCo and Goya face a spate of class action lawsuits relating to the caramel coloring in their soda drinks.  In January, Consumer Reports, an independent product testing organization, released a report detailing its investigation of the amount of 4-methylimidazole (“4-MEI”), an impurity created during the manufacturing of caramel coloring, in various soft drinks,… Read More

Pom Wonderful Brings Food Labeling Dispute To The U.S. Supreme Court: When Are Claims Based On Allegedly Improper Product Labeling Barred By The Food, Drug, And Cosmetic Act?

Posted in False Advertising Claims, Misbranding

A long-standing false advertising dispute between beverage companies Pom Wonderful and Coca-Cola has reached the United States Supreme Court and carries far-reaching implications for other food labeling litigation. On January 10, 2014, the Supreme Court granted certiorari in Pom Wonderful LLC v. The Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012). See Pom Wonderful LLC… Read More

FDA to Revisit “Evaporated Cane Juice” Draft Guidance

Posted in False Advertising Claims, Misbranding, Primary Jurisdiction

Earlier this month, the FDA announced that it would reopen the comment period on its draft guidance for the industry concerning use of the term “evaporated cane juice” (ECJ).  Draft Guidance for Industry on Ingredients Declared as Evaporated Cane Juice; Reopening of Comment Period; Request for Comments, Data, and Information, 79 Fed. Reg. 12,507 (Mar…. Read More

Judge Koh Tosses Restitution and Disgorgement Claims in Bumble Bee Class Action

Posted in False Advertising Claims, Misbranding

In one of the first summary judgment rulings in the onslaught of food mislabeling and misbranding class actions, Judge Lucy Koh of the Northern District of California tossed the plaintiff’s restitution and disgorgement claims.  Her exclusion of the plaintiff’s monetary relief claims is a welcome limitation on class action damages. Background: On January 2, 2014,… Read More

Pom Wonderful Case Against Coca-Cola Heads to the High Court

Posted in False Advertising Claims

The United States Supreme Court has decided to wade into a battle between POM Wonderful LLC and Coca-Cola Co. over whether Coke’s labeling of its Minute Maid pomegranate-blueberry juice blend violates the Lanham Act’s prohibition against false advertising. POM is challenging the Ninth Circuit’s decision upholding dismissal of its Lanham Act claim, which alleged that… Read More

FDA Refuses to Settle “All Natural” Debate

Posted in False Advertising Claims, GMO, Misbranding

The U.S. Food and Drug Administration (FDA)  has officially refused requests from several courts (discussed here and here) for a determination of whether and under what circumstances food products containing genetically modified organisms (GMOs)  may be labeled “natural.” Citing the need for extensive public input from the various stakeholders, the complexity of the issue and… Read More

Two Judges in the Central District of California Dismiss Labeling Class Actions, Finding Claims Challenging Strawberry Images on Nature’s Path’s Cereal Boxes and “Natural” Statements on Hain Celestial’s Cosmetics Implausible

Posted in False Advertising Claims, Motion to Dismiss

Judges George Wu and Manuel Real both recently dismissed two class actions in the Central District of California that challenged the labeling of food and cosmetics as false and misleading.  Defendants (represented by a team of MoFo litigators led by William Stern) persuaded the courts that the plaintiffs’ claims were implausible as a matter of… Read More

Class Certification Denied in Chipotle “All Natural” Case Where Class Unascertainable from Chipotle’s Records

Posted in Class Certification, False Advertising Claims

A recent decision in the Central District of California reflects the growing trend among federal courts to deny class certification where the class is not ascertainable from the defendants’ records. Last week, U.S. District Court Judge Dale Fischer denied class certification in Alan Hernandez v. Chipotle Mexican Grill, Inc., Case No. 12-05543 DSF (C.D. Dec…. Read More

Monster Beverage Dismissal Order Energizes Defenses Available to Food Labeling Defendants

Posted in False Advertising Claims, Preemption, Primary Jurisdiction

A recent, comprehensive decision from the Central District of California lends valuable support to defendants’ ability to pursue pleading challenges and defenses in the context of food labeling class actions.  In Fisher v. Monster Beverage Corp., et al., No. EDCV 12-02188-VAP (OPX), Docket Entry 72 (C.D. Cal. Nov. 12, 2013), plaintiffs Alec Fisher, Matthew Townsend,… Read More

Judge Conti Weighs in on UCL “Unlawful Prong” Requirements in Food Labeling Case Against Frito-Lay

Posted in False Advertising Claims, Misbranding

We recently discussed the growing conflict in the Northern District of California over whether plaintiffs need to plead reliance to state a claim under the “unlawful prong” of California’s Unfair Competition Law (UCL).  Judge Conti recently added his voice to the debate, issuing a strong ruling, in a food labeling case against Frito-Lay, that reliance… Read More

Conflict Reigns in Food Court: Court Allows “Unlawful Prong” UCL Claims to Survive Without Allegations of Reliance in Cases Against Wallaby Yogurt and Trader Joe’s

Posted in False Advertising Claims, Misbranding

Judges in the Northern District of California can’t agree on what is required to state a claim under the “unlawful prong” of California’s Unfair Competition Law (UCL).  Judge Orrick’s recent decisions in a pair of food labeling cases challenging the use of terms such as “evaporated cane juice” create new uncertainty.  In Morgan v. Wallaby… Read More

Weight Watchers Class Action Dismissed Due to Plaintiff’s Failure to Properly Test the Challenged Products

Posted in False Advertising Claims, Misbranding, Preemption

On October 17, 2013, a federal district court judge in New Jersey dismissed a putative class action against Weight Watchers International, Inc. (Weight Watchers) alleging that Weight Watchers misrepresented the calorie content of its ice cream bars.  The court dismissed because the plaintiff failed to allege that her testing methods for the challenged products complied… Read More

Watchdog Attacks Coupon Settlement in False Advertising Action

Posted in False Advertising Claims, Settlement

The recent filing of an amicus brief by advertising watchdog Truth in Advertising Inc. (TINA) is a good reminder that, even where there are no objectors, class action settlements are subject to attack by third parties.  The proposed settlement would dispose of a class action against Philips Oral Health Care, Inc. (Philips) for allegedly deceptively… Read More

The New Lawsuit Ecosystem Trends, Targets and Players

Posted in False Advertising Claims, Misbranding

Don’t miss this report from the U.S. Chamber Institute for Legal Reform, The New Lawsuit Ecosystem Trends, Targets and Players. Food class action litigation is noted as an emerging liability threat and this report provides more evidence that Northern District of California is “the Food Court.” Our own Will Stern is quoted. “…even judges are… Read More

Second Time’s a Charm: “Evaporated Cane Juice” Claims Tossed in Chobani Yogurt Case on Motion for Reconsideration

Posted in False Advertising Claims, Misbranding

Judge Koh in the Northern District of California recently issued a strong ruling in favor of Chobani, Inc. on a motion to reconsider her prior ruling on Chobani’s motion to dismiss. Kane v. Chobani, Inc., No. 5:12-cv-02425-LHK, 2013 U.S. Dist. LEXIS 134385 (N.D. Cal. Sept. 19, 2013). The Court dismissed the plaintiffs’ claim that use of… Read More

Misbranding Case Against Gerber Over “Stages” Baby Food Products Trimmed but Not Kicked Entirely

Posted in False Advertising Claims, Misbranding, Motion to Dismiss

A recent case in the Northern District of California against Gerber over alleged misbranding of its “stages” baby food products demonstrates the difficulty companies face in knocking out food misbranding cases at the motion to dismiss phase. Bruton v. Gerber Prods. Co., et al., 12-CV-02412-LHK. The lawsuit focuses on Gerber’s product labels, which include phrases… Read More

New York District Court Trims GMO Class Action Against Frito-Lay Over “All Natural” Labels

Posted in False Advertising Claims, GMO, Motion to Dismiss, Primary Jurisdiction, Standing

Last week, a New York federal court dismissed numerous claims against Frito-Lay North America, Inc. in a multidistrict class action over “all natural” labels on Frito-Lay products such as Tostitos, SunChips and Fritos Bean Dip that allegedly contain genetically modified organisms (GMOs).  In re Frito-Lay North America, Inc. All Natural Litigation, 12-MD-2413 (RRM)(RLM).  U.S. District… Read More

Kashi and Bear Naked Beat Back Nationwide Class Actions Brought Against “All Natural” Products

Posted in False Advertising Claims, Misbranding

On July 31, 2013 the Southern District of California refused to certify nationwide classes in nearly identical “all natural” cases brought against Kashi and its subsidiary, Bare Naked. In Astiana v. Kashi Co., Case No. 3:11-cv-01967, plaintiffs alleged that the “Nothing artificial” and “All natural” language on certain of Kashi’s product labels was misleading because… Read More

Update: FDA Weighs In on “Gluten-Free” Labeling Requirements

Posted in False Advertising Claims, GMO, Misbranding

On August 2, 2013, the FDA issued its final rule defining the term “gluten-free” (and its equivalents, such as “no gluten,” “free of gluten,” and “without gluten”) for voluntary use in food labeling. The key provisions of the rule remain the same as originally proposed (discussed here), defining “gluten-free” to mean that the food is… Read More

Barbara’s Bakery and Naked Juice Settle GMO Class Actions and Agree to Third-Party Substantiation of Non-GMO Labeling

Posted in False Advertising Claims, GMO, Organic

Class actions challenging “all natural” labels on products allegedly containing genetically modified organisms (GMOs) are all the rage in California. The jury is still out on how these claims will ultimately hold up, but some litigants don’t want to find out. Recently, both Barbara’s Bakery and Naked Juice agreed to settle the cases pending against… Read More

What Would the FDA Do? Court Asks Agency to Resolve GMO Labeling Issue in “All Natural” Case Involving Mission Tortilla Chips

Posted in False Advertising Claims, GMO, Misbranding

Last month we highlighted a tentative decision out of the Northern District of California that contemplated a stay of proceedings in the Cox v. Gruma Corp. (Case No. 12-CV-6502 YGR) matter while the FDA is asked to decide whether food products containing genetically modified organisms (GMOs) may be labeled “natural” or “all natural.” (See prior… Read More

False Advertising Claims Against Tropicana Survive Motion to Dismiss

Posted in False Advertising Claims, Misbranding, Motion to Dismiss, Preemption

We have frequently reported on how courts have addressed preemption arguments in the growing number of mislabeling suits that have been filed against food companies. See previous posts here and here. Last week, a federal court in New Jersey denied Tropicana’s motion to dismiss a nationwide putative class action involving Tropicana’s advertising of its “not-from-concentrate”… Read More

Court May Ask FDA to Weigh In on “All Natural” Debate

Posted in False Advertising Claims, GMO

California federal courts, particularly those in the Northern District, have become a magnet for food labeling litigation—in particular, cases challenging “All Natural” labels on products containing genetically modified organisms (GMOs).  The FDA, which has regulatory authority over food labeling, has not addressed whether foods containing GMOs may be labeled “natural,” or whether the existence of… Read More