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Private Surgeon General Class Action Defender

Category Archives: Preemption

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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

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

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

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

A Dismissal That’s Sweeter Than Honey

Posted in Motion to Dismiss, Preemption

A recent case from the Central District of California brings good news to defendants making preemption arguments under the Nutrition Labeling and Education Act (NLEA) in private surgeon general cases. Cardona v. Target Corporation, et al., No. 2:12-cv-01148-GHK-SP, Docket Entry 48 (C.D. Cal. Mar. 20, 2013). While defendants have had mixed success with preemption, especially… Read More

Preemption Still Has Teeth: The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit

Posted in False Advertising Claims, Preemption

As we have noted in prior posts (FDCA, POM, preemption), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit with claims about their labeling.  Yesterday, Judge Otero in the Central District of California confirmed that preemption under the FDCA has teeth, finding that the FDCA preempts… Read More

Class Action Settlement Regarding Alleged Mislabeling of “Organic” Milk

Posted in False Advertising Claims, Misbranding, Organic, Preemption, Settlement

A Missouri federal judge has preliminarily approved a class action settlement in a multidistrict litigation involving the alleged mislabeling of organic milk. In re Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., No. 4:08-md-1907-ERW, D.E. 321 (E.D. Mo. Sept. 14, 2012). Piggybacking on a 2007 report issued by the U.S. Department of Agriculture… Read More

Preemption and the Health Claim Class Action: FDA to the Rescue?

Posted in False Advertising Claims, Misbranding, Preemption

In one of the very first private surgeon general class actions, plaintiffs alleged that pictures of fruits on fruit drink products conveyed to consumers that the products contain those fruit in amounts greater than the 10% fruit juice common in most fruit juice drinks.  Thankfully, the Central District of California ruled that the FDA’s precise… Read More