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Category Archives: Misbranding

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FDA Extends Comment Period on “Natural” Food Labeling by 90 Days

Posted in False Advertising Claims, Misbranding

In November we reported that the federal Food and Drug Administration (FDA) announced that it was seeking public comments on the use of the term “natural” on food labeling, including foods that are genetically engineered or that contain ingredients produced through genetic engineering. On December 28, FDA announced that it is extending the comment period… Read More

Stand Down! Court Rejects Yakult Yogurt False Advertising Class for Lack of Standing

Posted in Class Certification, False Advertising Claims, Misbranding

On January 5, 2016, in Torrent v. Yakult U.S.A., Inc., U.S. District Court Judge Cormac J. Carney denied the plaintiff’s motion to certify a class of Yakult yogurt consumers who were allegedly misled by Yakult’s packaging and advertising claims.  The Court found that the sole named plaintiff lacked Article III standing to seek injunctive relief… Read More

No Soup for You! Judge Denies Preliminary Approval of Settlement in CJ Foods’ Annie Chun Soup Case

Posted in False Advertising Claims, Misbranding

A recent decision from the Southern District of California highlights two challenges with obtaining preliminary approval of nationwide food misbranding class action settlements.  On December 16, 2015, in Peterson v. CJ America, Inc. d.b.a. CJ Foods Inc., Case No. 3:14-cv-02570, U.S. District Judge Dana M. Sabraw denied preliminary approval of the proposed class action settlement… Read More

California Supreme Court Opens the Door to Organic Mislabeling Claims

Posted in False Advertising Claims, Misbranding

Last week, the California Supreme Court issued a long awaited ruling on organic labeling in Quesada v. Herb Thyme Farms, Inc., No. S216305, 2015 WL 7770635 (Cal. Dec. 3, 2015). At issue in Quesada was whether consumers may bring state law fraud and misrepresentation claims to challenge herb products allegedly mislabeled as “certified organic.” The… Read More

Trader Joe’s Wins Dismissal of Soymilk Products Mislabeling Claims

Posted in False Advertising Claims, Misbranding

On December 2, 2015, Judge Vince Chhabria of the Northern District of California dismissed with prejudice claims that grocery retailer Trader Joe’s violated California’s Unfair Competition Law (UCL) by using the term “soymilk” to describe certain food products that did not have cow’s milk. The plaintiffs alleged that Trader Joe’s’ use of the word “soymilk”… Read More

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

Posted in False Advertising Claims, Misbranding

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to remove an action to federal court must provide sufficient admissible evidence supporting the jurisdictional basis for removal. No. 15-cv-03702-YGR.[1]  Judge Yvonne Gonzalez Rogers remanded to California state court an… Read More

FDA Requests Public Comments on “Natural” Food Labeling

Posted in False Advertising Claims, Misbranding

On November 10, the federal Food and Drug Administration (FDA) announced that it is seeking public comments on use of the term “natural” on food labeling. FDA, “Natural” on Food Labeling (Nov. 10, 2015). The agency explained that its actions were prompted by the “changing landscape of food ingredients and production, and in direct response… Read More

Blue Diamond and WhiteWave Win Dismissal of Injunctive Relief Claim for Almond Milk Products

Posted in False Advertising Claims, Misbranding

A recent decision from the Southern District of New York demonstrates the challenges consumers face in seeking injunctive relief on behalf of a class.  On October 21, 2015, in Albert et al. v. Blue Diamond Growers, et al., Case No. 1:15-cv-04087-VM, U.S. District Judge Victor Marrero granted defendants’ motion to dismiss the injunctive relief claim… Read More

“Food” Courts Confirm That Price Premium Is the Proper Measure of Damages in Misbranding Cases

Posted in Class Certification, False Advertising Claims, Misbranding

The flurry of food mislabeling class actions filed in California federal courts has recently come to a halt under the U.S. Supreme Court’s holding in Comcast v. Beherend. Comcast requires that putative class action plaintiffs present a damages model tied to their theory of liability. District courts in food mislabeling cases have limited plaintiffs’ recovery… Read More

Rescue Remedy Decision Confirms that CLRA Notice Requirement Has Real Teeth

Posted in False Advertising Claims, Misbranding

A recent decision from the Southern District of California demonstrates the potential narrowing effect of a failure to strictly comply with the notice requirement for claims for damages under California’s Consumers Legal Remedies Act (CLRA), Cal. Civ. Code § 1750 et seq. In Ruszecki v. Nelson Bach USA Ltd., No. 12-cv-495 (S.D. Cal. June 25,… Read More

Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit’s High Bar for Ascertainability

Posted in Class Certification, False Advertising Claims, Misbranding

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge “all natural” claims by the makers of Skinnygirl Margarita. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J. June 8, 2015). The court held that the Third Circuit’s high bar for… Read More

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