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Category Archives: Misbranding

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POM Wonderful Inc. v. FTC: Lessons Learned

Posted in Misbranding

On January 30, 2015, the United States Court of Appeals for the District of Columbia issued an opinion in a case regarding the Federal Trade Commission’s (FTC) challenge to the advertisements of POM Wonderful’s (“POM”) pomegranate-based products. POM Wonderful Inc. v. FTC, Case No. 13-1060 (D.C. Cir. Jan. 30, 2015). POM produces, markets, and sells… Read More

Plaintiff’s Mislabeling Claims Against Honest Tea Survive Motion to Dismiss

Posted in False Advertising Claims, Misbranding, Preemption

On January 5, 2015 Judge Kimberly Mueller of the Eastern District of California denied Honest Tea’s motion to dismiss a case involving accusations that the company misled consumers about the antioxidant content of one of its teas.  Salazar v. Honest Tea, No. 2:13-CV-02318 (E.D. Cal. Jan. 5, 2015).  The plaintiff claimed that Honest Tea has… Read More

Judge Koh Awards Double Victory in “Natural” Labeling Class Action Against Dole, Granting Decertification and Summary Judgment

Posted in Misbranding

As the food “misbranding” litigation continues to fill courts’ dockets, Judge Lucy H. Koh recently put an end to the two-year battle against Dole’s packaged fruit labeling in the Northern District of California. Dole (represented by a team of MoFo litigators led by William Stern) was first successful in decertifying the Rule 23(b)(3) “damages” class,… Read More

Judge Illston Finds Proof of Injunctive Standing and Consumer Deception Lacking in Consumer Challenge to Mott’s 100% Apple Juice Labels

Posted in Misbranding

Judge Illston’s recent summary judgment ruling in Rahman v. Mott’s LLP, Case No. CV 13-3482 SI (N.D. Cal. Oct. 14, 2014), highlights courts’ varied approaches to the level of proof required to demonstrate Article III injunctive standing and consumer deception.  The court’s opinion also represents a significant win for defendants facing food labeling claims. In… Read More

Pom Wonderful Drops Ninth Circuit Appeal of State Claims Filed Against Coca-Cola

Posted in False Advertising Claims, Misbranding, Preemption

On September 19, 2014, Pom Wonderful, LLC dropped its Ninth Circuit appeal of a ruling that dismissed its state deceptive advertising and unfair competition claims against Coca-Cola, a sibling case to a recent Supreme Court decision.  (See prior Pom Wonderful blog post here.)  Accordingly, the Ninth Circuit will not revisit whether Pom Wonderful’s state court… Read More

Plaintiffs Sent Back to the Drawing Board in Mislabeling Suit Over “All Natural” and “Fat Free” Claims on Frito-Lay Rold Gold Pretzels

Posted in False Advertising Claims, Misbranding

Judge Samuel Conti of the Northern District of California recently issued another blow to class action plaintiffs—this time at the motion to dismiss stage—in Figy v. Frito-Lay N. Am., Inc., Case No. 13-3988-SC (N.D. Cal. Aug. 12, 2014) (See post for Judge Conti’s defense-friendly class certification decision in In Re Clorox Consumer Litigation, Case No…. Read More

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

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

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

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