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Category Archives: False Advertising Claims

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Class Action Suit Against Sunflower Seed Manufacturer Dismissed as Implausible

Posted in False Advertising Claims, Misbranding

In a recent food mislabeling case, Judge Manuel Real of the Central District of California dismissed a proposed class action lawsuit finding the plaintiffs’ claims to be implausible as a matter of law. Last year, Judge Real and Judge George Wu dismissed class actions challenging the labeling of food and cosmetics on this same basis…. Read More

Class Certified in Homeopathic Products Case

Posted in Class Certification, False Advertising Claims

The plaintiffs’ theory of harm drove a recent decision from the Central District of California certifying a nationwide class of purchasers of ten homeopathic products. Allen v. Hyland’s Inc., Case No. 12-01150 (C.D. Cal. Aug. 1, 2014) (Docket No. 291). The Allen plaintiffs contend that Hyland’s Inc.’s homeopathic products were mislabeled as to their uses and effectiveness… Read More

California Federal Court Follows Third Circuit in Denying Class Certification Based on Lack of Receipts in Kitty Litter Case

Posted in Class Certification, False Advertising Claims

Judge Conti of the Northern District of California recently issued a decision denying class certification in a consumer class action against The Clorox Company involving claims arising from the marketing and advertising of Fresh Step cat litter (In Re Clorox Consumer Litigation, Case No. 12-00280-SC (N.D. Cal. July 28, 2014) (ECF No. 129) (“Order”)). The court… Read More

Phelps v. Coca-Cola: Orange Juice Misbranding “Copycat” Suit Finds Its Way Into State Court

Posted in False Advertising Claims, Misbranding

Copycat lawsuits appear to be increasing in food labeling cases. The Coca-Cola Company (“Coca-Cola”) is the latest company to be targeted with a copycat suit in California. A putative class action, Phelps v. The Coca-Cola Co., No. BC547592, filed in Los Angeles Superior Court on June 3, 2014, alleges that Coca-Cola misleadingly promoted its Simply… Read More

U.S. Supreme Court Rejects Broad FDA Preclusion in Pom Wonderful Lanham Act Case

Posted in False Advertising Claims, Preemption

On June 12, 2014, the U.S. Supreme Court issued an 8-0 ruling in favor of Pom Wonderful in a long standing false advertising dispute against rival beverage company Coca-Cola.  Reversing the Ninth Circuit’s broad FDA preclusion ruling, the Supreme Court held that competitors can bring Lanham Act claims like Pom Wonderful’s challenging food and beverage… Read More

Algarin v. Maybelline: Survey Evidence of Purchaser Behavior Defeats Class Certification

Posted in Class Certification, False Advertising Claims

A recent decision by a California federal judge highlights the important role that expert testimony and evidence can play in defeating a bid for class certification. On May 12, 2014, Judge Anthony Battaglia of the Southern District of California denied a motion for class certification in a lawsuit challenging Maybelline’s allegedly false and deceptive advertising… Read More

Receiving the Benefit of the Bargain: Reconciling Judge King’s Class Certification Rulings in Forcellati and Caldera

Posted in Class Certification, False Advertising Claims, Misbranding

Within one week’s time, Judge George H. King, Chief Judge of the U.S. District Court for the Central District of California, came down on opposite sides of the class certification coin, granting class certification in Forcellati v. Hyland’s, Inc., CV 12-1983-GHK (MRWx) (C.D. Cal. Apr. 9, 2014), and denying it in Caldera v. The J.M…. Read More

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