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.

Court Allows Late July Snacks Claims to Proceed

Swearingen v. Late July Snacks, LLC, No. 3:13-cv-04324 (N.D. Cal.): The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative ECJ class action, which alleges violations of California’s CLRA, FAL, and UCL, and a claim for unjust enrichment. Plaintiff alleges that Defendant has misleadingly used the term “evaporated cane juice” on the label of various products, including its Late July’s Classic Saltines Crackers, Classic Rich Crackers, Sea Salt By The Seashore Multigrain Snack Chips, and other varieties of crackers and snack chips. In partially granting the motion, the court held that a reasonable consumer would be deceived by Defendant’s use of the term ECJ on its labeling, its UCL, CLRA, and FAL claims were not preempted by federal law, and further held that Plaintiff satisfied its heightened pleading standard under Rule 9(b). With respect to Plaintiff’s unjust enrichment claim, the court held that because Plaintiff adequately pled reliance on Defendant‘s misrepresentation, it could also state a claim for unjust enrichment. The court dismissed Plaintiff’s nationwide class allegations with leave to amend because it failed to allege that putative class members purchased products outside of California. Finally, the court also dismissed Plaintiff’s request for injunctive relief as it failed to allege that it planned to purchase Defendant’s products in the future.

Court Dismisses ECJ Claims

Swearingen, et al. v. Healthy Beverage, LLC, et al., No. 3:13-cv-04385 (N.D. Cal.): The Court issued an order dismissing this ECJ action, which challenged Defendant’s use of the term “evaporated cane juice” on the ingredient lists for its Steaz Iced Green Tea and Steaz Organic Energy Drinks. The order dismissed with prejudice Plaintiffs’ UCL, FAL, and CLRA claims, which failed to plead reliance, and dismissed its unjust enrichment claim because it was inadequately plead.

New Filings – May 25, 2017

Brumfield, et al. v. Trader Joe’s Company, No. 1:17-cv-03239 (S.D.N.Y.): Putative class action for violation of the Magnuson-Moss Warranty Act, the deceptive acts or practices and false advertising provisions of the GBL, California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties, unjust enrichment, negligent misrepresentation, and fraud. Plaintiffs allege that Defendant falsely markets and sells its Trader Joe’s Black Truffle Flavored Extra Virgin Olive Oil as being flavored by actual black truffles, when it is flavored by an industrially-produced, chemically-derived perfume known as 2,4-dithiapentane.

Jessani, et al. v. Monini North America, Inc., No. 1:17-cv-03257 (S.D.N.Y.): Putative class action for violation of the Magnuson-Moss Warranty Act, the deceptive acts or practices and false advertising provisions of the GBL, California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties, unjust enrichment, negligent misrepresentation, and fraud. Plaintiffs allege that Defendant falsely markets and sells its Monini White Truffle Flavored Extra Virgin Olive Oil and Monini Black Truffle Flavored Extra Virgin Olive Oil as being flavored by actual black truffles, when it is flavored by an industrially-produced, chemically-derived perfume known as 2,4-dithiapentane.

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