Rulings, Orders, Settlements – October 9, 2017

Court Denies Motion to Dismiss Class Action Involving Healthfulness of Extra Virgin Coconut Oil

Traction v. Viva Labs, Inc., No. 3:16-cv-02772 (S.D. Cal.): The Court issued an order denying Defendant’s motion to dismiss this putative class action for violation of California’s CLRA, UCL, FAC and breach of express and implied warranties. Plaintiff alleges Defendant misleadingly labels and markets its Organic Extra Virgin Coconut Oil as healthy, and as a healthy alternative to butter and other cooking oils, despite that it is actually inherently unhealthy and a less healthy alternative. The Court denied the motion based on lack of standing and declined to dismiss Plaintiff’s UCL, FAL, and CLRA claims based on the reasonable consumer test.  The Court also denied the motion with respect to Plaintiff’s UCL unlawful claim, and breach of express and implied warranty claims. Continue Reading

New Filings – October 2, 2017

Kramarz v. JR Carlson Laboratories Inc., 2017-CH-12609 (Ill. Super. Ct. – Cook Cnty.): Putative class action raising claims for breach of express warranty and unjust enrichment, and alleging violations of various states’ consumer protection statutes, including the Illinois Consumer Fraud and Deceptive Business Practices Act. Plaintiff alleges Defendant misleadingly markets its sports supplement called “L-Glutamine” as helping people recover from exercise and giving energy for muscle growth, when in  fact the product’s ingredients have been found to be ineffective for these purposes. Continue Reading

Rulings, Orders, Settlements – September 18, 2017

Court Denies Motion to Dismiss in False Advertising Action Involving Iced Tea

Martin, et al. v. TradeWinds Beverage Company, No. 2:16-cv-09249 (C.D. Cal.): The Court entered an order denying Defendant’s motion to dismiss this putative class action for violations of California’s CLRA, UCL, FAL, and for breach of express warranty. Plaintiffs alleged that Defendants falsely advertised that its iced tea is labeled as “All Natural,” when in fact, it contains artificial coloring, caramel color.

The Court rejected Defendant’s argument that Plaintiffs’ claims are barred by the doctrines of express preemption, conflict preemption, field preemption, and implied preemption on the grounds that the FDA, vested by Congress with the sole authority to regulate the use, manufacture, and labeling of color additives, has the first and last word on the issue of color additives. Similarly, the Court rejected Defendant’s argument that its compliance with the FDA’s labeling requirements for caramel coloring provides it a safe harbor under California law. The Court also found that Plaintiffs sufficiently alleged a misleading statement. Finally, the Court denied Defendant’s motion to dismiss on the basis that the First Amendment protects its commercial speech. Continue Reading

Rulings, Orders, Settlements – August 4, 2017

Court Denies Motion to Dismiss for Non-Functional Slack-Fill Class Action

White v. Just Born, Inc., No. 2:17-cv-4025 (W.D. Mo.): The Court issued an order denying Defendant’s motion to dismiss this putative non-functional slack-fill class action for violation of Missouri’s Merchandising Practices Act, and raising a claim for unjust enrichment. Plaintiff alleges that Defendant misleads consumers about the amount of Hot Tamales candy and Mike and Ike candy inside their opaque, cardboard packaging. Defendant moved to dismiss arguing that: (1) a reasonable consumer would not be deceived by the packaging; (2) slack-fill is not by itself impermissible under federal or state law, violation of food-labeling regulations does not support a finding of liability under the MMPA, and Plaintiff does not sufficiently allege that the slack-fill is non-functional or deceptive; (3) Plaintiff lacks standing to pursue injunctive relief; and (4) Plaintiff fails to state an ascertainable injury under the MMPA. In denying the motion, the Court held that the question of whether a consumer would determine from the labeling information that the boxes contain excess slack-filled space is a question of fact that Plaintiff had sufficiently plead its claims. It further held that Defendant plead a threat of ongoing or future harm, sufficient to establish standing. Continue Reading

New Filings – July 22, 2017

Kiihne v. NBTY, Inc., et al., No. T17-30 (Cal. Super. Ct. – Placer Cnty.):  Putative  class action for violation of California’s UCL, FAL, and CLRA. Plaintiff alleges that Defendants deceptively label and market their Megadose niacin products by downplaying potential side effects.

Lau v. Pret A Manger (USA) Limited – Complaint, No. 1:17-cv-05775 (S.D.N.Y.): Putative slack-fill class action for violation of the deceptive and unfair trade practices and false advertising provisions of New York’s GBL, and raising a claim for common law fraud. Plaintiff alleges that Defendant deceptively packages its Pret A Manger® sandwich wraps in partially opaque packaging so that consumers cannot see the empty air (or slack-fill) in the wrap.

Nguyen, et al. v. Lotus By Johnny Dung Inc., No. 8:17-cv-01317 (C.D. Cal.): Putative class action for violation of California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties. Plaintiff alleges that Defendant deceptively advertises its products to treat and cure health conditions including diabetes, high blood pressure, and cholesterol, and to “kill cancer cells.” Plaintiff further alleges that the Vietnamese-only advertising is by design, intended to exploit a lesser educated Vietnamese population.

New Filings – June 26, 2017

Azimpour v. NBTY, Inc., et al., No. 37-2017-21000 (Cal. Super. Ct. – San Diego Cnty.):  copycat putative class action asserting violations of California’s UCL, FAL, and CLRA, and a claim for breach of express warranty. Plaintiff alleges that Defendants deceptively label and market their Natures’ Bounty and Sundown Naturals Ginkgo Biloba extract products as providing a variety of cognitive health benefits and relief from various symptoms, despite the lack of scientific evidence to support those claims. Continue Reading

Food Litigation Midyear Review

On August 2, 2017, Perkins Coie will be hosting a 60-minute webcast reviewing the key developments and trends in food litigation. This webcast reflects our active monitoring of food litigation filings in jurisdictions nationwide and will include an analysis of the key legal developments in cases involving claims challenging the labeling, composition, and regulatory compliance of food and beverage manufacturers. Additional details and registration information can be found here.

New Filings – June 19, 2017

Hensel v. Andrea’s Fine Foods, Inc., et al., No. 1722-CC01421 (Mo. Cir. Ct. – St. Louis Cnty.): Putative class action alleging violations of Missouri’s Merchandising Practices Act and raising claims of negligent misrepresentation and unjust enrichment. Plaintiff claims that Defendants falsely marketed their pie and pie crust products as “all natural,” although the products contain xanthan gum, a synthetic substance. Continue Reading

New Filings – June 12, 2017

Kao, et al. v. Abbott Laboratories, Inc., No. 3:17-cv-2790 (N.D. Cal.): Putative class action alleging that Defendant misleadingly markets its Similac Advanced Non-GMO baby formula as containing no GMOs when independent testing indicated that the formula contained GMOs.

Stanton v. Sargento Foods Inc., No. 1:16-cv-04578 (N.D. Cal.): Putative class action asserting that Defendant falsely markets their cheese products as “Natural,” even though the cows used to make the products are fed with genetically modified feed and/or given an unnatural recombinant called Bovine Soatotropin (rbST).

Bowling v. Johnson & Johnson, et al., No. 1:17-cv-03982 (S.D.N.Y.): Putative class action asserting Defendants falsely market their “Benecol Spreads”, an alternative to butter, as (1) containing “No Trans Fats” and “No Trans Fatty Acids” and (2) being generally recognized as safe for human consumption. Plaintiff alleges that the spreads contain partially hydrogenated oils, which always contain trans fats and which the FDA has concluded are not generally recognized as safe for human consumption.

Aros v. Kay’s Naturals, Inc., No. RIC-1709554 (Cal. Super. Ct. – Riverside Cnty.): Putative class action, alleging that Defendant advertised its Protein Cookie Bites as healthy and containing all-natural ingredients that are diabetic-friendly even though it contains “evaporated cane juice.”

Preliminary Settlement Approved in Misleading Coconut Water Suit

Ma, et al. v. Harmless Harvest, Inc., No. 2:16-cv-07102 (E.D.N.Y.): The Court preliminary approved a settlement in this putative class action alleging that Defendant labeled its coconut water as “100% organic” and “USDA Organic” and “100% raw” even though it knew its products were not solely made from organic coconuts and were not “raw.”

As part of the settlement, Defendant represented that it had removed all “raw” and “100% Organic” labels from products imported into the United States, although Defendant will continue to label its coconut water as “USDA Organic.” In addition, Defendant agreed to pay an independent consultant to review for a period of two years the labeling on Defendant’s coconut water products to ensure the labels are accurate. Defendant will also pay a settlement administrator up to $350,000 to notify class members of the settlement. And Defendant agreed to pay up to $575,000 to Plaintiffs’ counsel for their attorneys’ fees and costs and up to $20,000 total to the named plaintiffs as an incentive award.

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