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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 – September 18, 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 Rulings, Orders, Settlements – August 4, 2017

food-lit-imagePerkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016.  The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing…

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.…

Continue Reading New Filings – March 13, 2017

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…

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…

Stolz v. Fage Dairy Processing, S.A., No. 1:14-cv-3826 (E.D.N.Y.): The Court granted-in-part and denied-in-part Defendant’s partial motion to dismiss in this putative class action alleging consumers were misled by Defendant’s “Total 0%” packaging on its yogurt products because consumers believe the product lacks fat, sugar sodium, cholesterol, calories or carbohydrates. First, the Court dismissed…

In re Kind LLC “Healthy and All Natural” Litig., No. 1:15-md-02645 (S.D.N.Y.): The Court entered an order granting in part Defendants’ motion to dismiss this consolidated putative class action asserting violations of multiple states’ consumer protection laws and raising claims for breach of express warranty, unjust enrichment, and negligent misrepresentation.  Plaintiffs allege Defendants deceptively marketed its snack food products with labels including the words “healthy,” “all natural,” and/or “non GMO.”…
Continue Reading Court Grants Defendants’ Motion, Staying Consolidated Action Involving “Healthy and All Natural” Claim on Primary Jurisdiction Grounds