New Filings – March 13, 2017

Erika McCartney v. Pacific West Ingredients LLC, et al., No. CGC-17-556912 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging Defendants failed to warn consumers their Organic Merchants Co. brand cacao nibs contain cadmium.

Burton, et al. v. Inventure Foods, Inc., No. 3:17-cv-0134 (S.D. Ill.): Putative class action for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, Missouri Merchandising Practices Act, unjust enrichment, and breach of express warranty. Plaintiff alleges that Defendant misleadingly markets and sells its Boulder Canyon branded snack chips as containing “evaporated cane juice” on their ingredient lists, instead of sugar. Complaint attached.

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Recent Significant Rulings

Preliminary Settlement Approved In Misleading Meat Substitute Suit

Birbrower v. Quorn Foods, Inc., No. 2:16-cv-1346 (C.D. Cal.): The Court preliminarily approved a settlement in this putative class action involving allegations that the packaging of Defendant’s meat-substitute products falsely represents that its main ingredient, mycoprotein, is the same or substantially similar to a mushroom, truffle, or morel, when in fact the products are actually made of mold.

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Food Company Execs Looking to Minimize Criminal Exposure, DOJ Officials Offer Guidance

With the U.S. Department of Justice (DOJ’s) increasing focus on prosecuting “responsible corporate officers” under the criminal misdemeanor provision of the Food, Drug, and Cosmetic Act (FDCA), they have offered some guidance for food companies to demonstrate their commitment to safety compliance. For more information and guidance click here for the full article posted on White Collar Briefly.

Recent Significant Rulings for January 24, 2017

Stay Lifted In Olive Oil False Advertising Suit

Koller v. Med Foods, Inc., No. 3:14-cv-2400 (N.D. Cal.): The Court issued an order lifting the stay of this putative class action asserting violations of California’s CLRA, FAL, UCL, and raising claims for fraud and deceit. Plaintiff claims Defendants misled consumers into paying a premium for their olive oil products by marketing and advertising them as “extra virgin” and imported from Italy, when the olive oil is mixed with refined oil and the bottle is insufficient to protect it from heat and sunlight damage, causing the chemicals to break down and not stay extra virgin. The action was stayed pending decisions from the Ninth Circuit in Jones v. ConAgra Foods, No. 14-16327, Brazil v. Dole Packaged Foods, LLC, No. 14-17480, and Kosta v. Del Monte Foods, No. 15-16974, after the Court found those decisions might affect class certification issues like ascertainability and common proof of damages. On January 3, 2017, the Ninth Circuit issued two separate decisions in Briseno, and on January 19, 2017, the Court lifted the stay and advised the Plaintiff that it may renew his motion for class certification. (Previous Law360 coverage of the action here).

New Filings for January 23, 2017

Manemeit v. Gerber Products Co., et al., No. 2:17-cv-00093 (E.D.N.Y.): Putative class action alleging Defendants deceptively labels their “Good Start” infant formula as “the first and only formula whose consumption reduces the risk of infants developing allergies,” when such statement is false. Complaint.

Miller v. Yucatan Foods, L.P., No. BC645421 (Cal. Super. Ct. – Los Angeles Cnty.): Putative class action alleging that Defendant misrepresents the ingredients of its guacamole.

Environmental Research Center, Inc. v. Trevo LLC, No. RG17-845021: (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging defendant fails to warn consumers that its wellness products contain lead. Continue Reading

Supply Chain Updates: Human Rights Issues

Food companies are increasingly being challenged to police their worldwide supply chains to eliminate human rights violations.  It is no longer sufficient to focus solely on one’s own company as businesses are held responsible for the acts of others—often unknown and hidden in today’s complex supply chains.  Food companies have heightened exposure because human trafficking can be prevalent on commercial fishing boats, in agricultural fields and in food processing plants.  Plaintiff lawyers, activists and government agencies are alleging new legal theories to hold companies accountable in United States courts. Perkins Coie’s lawyers are leaders in developing and implementing effective and defensible supply chain compliance programs.

Information on the Freedom Initiative: Freedom Seal _ Public Notice.

For more information on our Supply Chain Compliance & Corporate Social Responsibility practice click here.

Palm Oil Supply Chain Abuses Reported by Amnesty International: Steps to Mitigate Legal Risk

Amnesty International recently released a report alleging that supply chains for production of palm oil—a common ingredient in many consumer products—are tainted by forced and child labor. In the nearly 150-page report titled “The Great Palm Oil Scandal: Labour Abuses Behind Big Brand Names,” Amnesty International accuses several major brand-name consumer goods companies of sourcing palm oil from suppliers that operate plantations where the alleged abuses took place.

The report has already received substantial media attention, including articles published by Forbes, The Washington Post, Reuters and Yahoo News. Although the accuracy of the report’s assertions have not been tested, it nonetheless emphasizes the growing importance of proper diligence in supply chain management and compliance with associated legal obligations for a company’s disclosures about its supply chain practices.

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Watkins Incorporated v. McCormick & Company

Watkins Incorporated v. McCormick & Company, No. 1:15-mc-01825 (D.D.C.): In this putative class action alleging that Defendant deceptively “slack-filled” its black pepper containers, which Plaintiff says caused it to lose pepper sales by confusing consumers, the Court granted in part Defendant’s motion to dismiss. Defendant moved to dismiss Plaintiffs’ claims for lack of constitutional or statutory standing under the Lanham Act, failure to state a claim, and because Minnesota’s choice-of-law rules preclude Plaintiff’s claims under the California and Florida statutes. In its order, the Court held that Plaintiff alleged enough to enjoy Article III standing and standing under the Lanham Act. It also held that Plaintiff’s Lanham Act false advertising claim was adequately alleged. Similarly, because the Court found that Plaintiff had adequately stated a claim under the Lanham Act, it also rejected Defendant’s argument that the state law claims (under the Minnesota Deceptive Trade Practices Act, the California UCL, and the Florida Deceptive and Unfair Trade Practices Act) should fail for the same reasons as the Lanham Act. However, because Plaintiff did not oppose Defendant’s motion to dismiss its common law claim of unfair competition, the Court dismissed that claim.

Decerbo v. Melitta United States of America Inc.

Decerbo v. Melitta United States of America Inc., No. 8:16-cv-00850 (M.D. Fl.): In this putative class action alleging Defendant deceptively mislabeled its flavored coffee products by omitting federally- and state-mandated language about artificial flavorings on its “French Vanilla” and “Hazelnut Creme” flavored coffees, the Court granted in part Defendant’s motion to dismiss. Defendant moved to dismiss Plaintiffs’ claims on the grounds that the Plaintiff’s consumer fraud claims fail to allege any unlawful conduct by Defendant and for failure to allege an ascertainable loss, and argued that its labels expressly identify that its flavored coffee products are made with “Natural and Artificial Flavors.” The Court held that Plaintiff has standing to pursue claims for monetary damages and prospective injunctive relief only with respect to products she has actually purchased from the Defendant. The Court also held that Plaintiff had failed to state a claim based on failure to attach or incorporate clear, complete and accurate images or descriptions of the allegedly offending product labeling, which made it impossible for the Court to determine whether the representations at issue could plausibly violate state consumer fraud and warranty laws.

New Filings for November 11, 2016

McCartney v. Whole Foods Market California Inc., et al., No. CGC-16-555096 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its Himalayan Bulk Goji Berries contain lead.

Scholder v. Ebro North America, et al., No. 2:16-cv-6002 (E.D.N.Y.): Putative class action alleging Defendant advertises and promotes its wheat pasta products  as “all natural,” “100% natural,” “100% whole grain,” and made from a single ingredient, 100% whole wheat,” when the products contain the chemical glyphosate.

Environmental Research Center, Inc. v. Singerman & Braun, LLC, No. RG16-837062 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its nutritional products contain lead.

Holve v. McCormick & Co., No. 6:16-cv-6702 (W.D.N.Y.): Putative class action alleging several varieties of Defendant’s McCormick spice and seasoning products are labeled as ”All Natural,” when they contain synthetic, artificial, and/or genetically modified ingredients.

McCartney v. Whitmore Family Enterprises, LLC, No. CGC-16-555059 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its Taza Organic Roasted Cacao Nibs contain cadmium.

Pellitteri v. Publix Super Markets, Inc., No. 9:16-cv-81786 and Rudder v. Publix Super Markets, Inc., No. 9:16-cv-81777 (S.D. Fl.): Putative class actions alleging Defendant falsely advertises its grated parmesan and Romano cheese products as containing “100% cheese,” when the products contain significant amounts of adulterants and fillers, including cellulose, a filler and anti-clumping agent derived from wood pulp.

Consumer Advocacy Group, Inc. v. Island Pacific Distribution, Inc., et al., No. BC638152 (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its turmeric powder contains lead.

Consumer Advocacy Group, Inc. v. Rom America, Inc., et al., No. BC638122 (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its whole cinnamon contains lead.

Amaya v. Dole Packaged Foods, LLC, No. 2:16-cv-7734 (C.D. Cal.): Putative class action alleging Defendant’s health and wellness advertising for its Dole Fruit & Oatmeal and Dole Parfait products is deceptive because the products contain substantial amounts of added sugar, which plaintiff claims increases risk of chronic disease.