Dismissal for Failure to Plead Reliance in “Unlawful” UCL Class Action

Swearingen v. Pacific Foods of Oregon, Inc., No. 3:13-cv-04157 (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 products. The order dismissed with prejudice Plaintiff’s claims, which failed to plead reliance, and asserted violations of California’s CLRA and UCL in light of the recent decision in Brazil v. Dole Packaged Foods, LLC, 660 Fed. Appx. 531 (9th Cir. 2016), which confirmed that reliance is required for those claims, including under the “unlawful” prong of the UCL.

New Filings – April 3, 2017

Consumer Advocacy Grp., Inc. v. Chulada, Inc., et al., No. BC651577: (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging defendants fail to warn consumers that their ground shrimp contains cadmium and cadmium compounds, and lead and lead compounds.

Envtl. Research Ctr., Inc. v. Blackstone Labs, LLC, No. RG17-850885: (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant fails to warn consumers that its dietary supplements contain lead and cadmium.

Consumer Advocacy Grp., Inc. v. Wal-Mart Stores, Inc., et al., No. BC651902: (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendants fail to warn consumers that their jarred anchovies contain lead. Continue Reading

New Filings – March 31, 2017

Iglesias v. Ferrara Candy Co., et al., No. 3:17-cv-0849 (N.D. Cal.): Putative non-functional slack-fill class action for violation of California’s CLRA, FAL, and UCL. Plaintiff alleges that Defendant misleads consumers about the amount of “Jujyfruits” brand candy inside their opaque, cardboard packaging.

Anestis v. Harvest Beverage Group, LLC, et al., No. 17-52286 (N.Y. Sup. Ct. – Westchester Cnty.): Putative class action for deceptive practices, false advertising, and fraud. Plaintiff alleges that Defendant markets and sells its “Juisi” brand juice products as “raw and cold-pressed,” when the products have been processed and heated through a high-pressure treatment.

Tsuchiyama v. Taste of Nature, Inc., No. BC651252 (Cal. Super. Ct. – Los Angeles Cnty.): Putative non-functional slack-fill class action for violation of California’s CLRA, alleging that Defendant misled consumers about the amount of candy inside its packaging. Continue Reading

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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