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Category Archives: Misbranding

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FDA to Revisit “Evaporated Cane Juice” Draft Guidance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Earlier this month, the FDA announced that it would reopen the comment period on its draft guidance for the industry concerning use of the term “evaporated cane juice” (ECJ).  Draft Guidance for Industry on Ingredients Declared as Evaporated Cane Juice; Reopening of Comment Period; Request for Comments, Data, and Information, 79 Fed.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

Like a Zombie, Mandatory Genetically Engineered Food Labeling Proposal Resuscitated in California

Posted in GMO, Misbranding

The specter of California requiring genetically engineered food labels is being revived in the form of State Senate Bill 1381, which is being promoted as a “simpler, cleaner version” of Proposition 37, the voter initiative that California’s voters rejected at the polls just over a year ago. But “simpler, cleaner” does not necessarily mean “better.”… 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

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

The Ninth Circuit Affirms Dismissal of Lazy Cakes Suit Where Product Packaging Belies Misrepresentation and Omissions Claims

Posted in Misbranding, Motion to Dismiss

On November 18, 2013, the Ninth Circuit affirmed a district court’s dismissal of a putative class action suit against HBB, LLC. Cheramie v. HBB, LLC, Case No. 12-55148 (9th Cir. Nov. 18, 2013). HBB produces Lazy Cakes, a melatonin-laced brownie-like product. The plaintiff accused HBB of omitting material facts in Lazy Cakes’ labels about the… Read More

Nestle Wins Dismissal of Class Action Over “Natural” Labeling on Buitoni Pasta Products

Posted in Misbranding, Motion to Dismiss

A federal judge in the Central District of California has dismissed a lawsuit against Nestle over its use of “all natural” on the packaging of its Buitoni pasta products.  Pelayo v. Nestle USA, Inc., Case No. 2:13-cv-05213-JFW-AJW (C.D. Cal. Oct. 25, 2013). The plaintiff alleged the term “natural” was misleading because the products contain at… 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

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

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

Two More Courts Defer to the FDA in Food “Misbranding” Class Actions

Posted in GMO, Misbranding

We previously reported Judge Yvonne Gonzalez Rogers’ decision to stay proceedings in the Cox v. Gruma Corp. matter while the FDA is asked to decide whether food products containing genetically modified organisms (GMOs) may be labeled “natural” or “all natural,” and her subsequent decision to similarly defer to the FDA in a case against Wholesoy… Read More

Court Dismisses Labeling Claims Against Wholesoy, Deferring to the Authority and Expertise of the FDA

Posted in Misbranding

Are judges in the Northern District of California losing their taste for food labeling litigation?  In a recent win for Wholesoy & Co., Judge Yvonne Gonzalez Rogers dismissed plaintiff’s “misbranding” claims concerning the terms “evaporated cane juice” and “soy yogurt” under the doctrine of primary jurisdiction. See Hood v. Wholesoy & Co., No. 12-cv-5550-YGR, 2013… 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

“All Natural” False Advertising Suit Dismissed: Ingredient List Saves the Day for Nature Valley Bars

Posted in False Advertising Claims, Misbranding, Motion to Dismiss

 A federal judge in Minnesota recently dismissed a putative class action accusing General Mills of falsely advertising its Nature Valley granola bars as “100% Natural.” Chin et al. v. General Mills, Inc., Case No. 12-cv-2150-MJD-TML (D. Minn. June 3, 2013).  The judge granted General Mills’ motion to dismiss because the allegedly artificial ingredients were clearly… Read More

FDCA Express Preemption Victory in Benecol Misbranding Class Action

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

A recent Third Circuit case brings good news for defendants making express preemption arguments under the Food, Drug and Cosmetic Act (FDCA) in misbranding class actions. Last week, the court affirmed the dismissal of a putative class action holding that Johnson & Johnson’s representations of the trans fat content and cholesterol-lowering capabilities of its Benecol®… Read More

“All Natural” Suit Against AriZona Iced Tea: Class Decertified and Suit Tossed

Posted in Class Certification, False Advertising Claims, Misbranding, Motion to Dismiss

In the world of food misbranding class actions, few cases have yet made it to the merits stage.  Companies defending against these claims should accordingly take note of AriZona Iced Tea’s recent win in Ries v. AriZona Beverages USA LLC, No. 3:10-cv-01139-RS, Docket Entry 195 (N.D. Cal. Mar. 28, 2013). Challenging HFCS and Citric Acid… Read More