Food for Thought is a review of significant court decisions affecting the food, beverage, dietary supplements and personal care products industry. Although many cases in this edition focus on class certification, others relate to summary judgment.

Consumer Class Action Against Juice Manufacturers Squeezes Through Summary Judgment as District Court Denies Parties' Cross-Motions
In re: Simply Orange Juice Marketing and Sales Practices Litigation, No. 4:12-md-2361 (W.D. Mo., Feb. 8, 2016)

The In re: Simply Orange Juice Marketing and Sales Practices Litigation consolidated cases are based on allegations that defendants the Coca-Cola Company, Simply Orange Juice Company (a division of Coca-Cola) and Minute Maid Company (a division of Coca-Cola) made false and misleading claims relating to their Simply Orange, Minute Maid Pure Squeezed and Minute Maid Premium orange juices. Specifically, plaintiffs alleged that the terms "100% Pure Squeezed," "Not from Concentrate," "Simply Orange," "Pure," "Natural," and "Honestly Simple," (for the Simply Orange products), "100% Pure Squeezed," "Pure Squeezed" and "Never from Concentrate" (for the Minute Maid Pure Squeezed products); and "100% Pure Squeezed," "100% Orange Juice," and "natural orange goodness" (for the Minute Maid Premium products) are misleading because the juice products at issue are made using a high-engineered artificial flavoring. Plaintiffs' lawsuit, brought on behalf of individual consumers residing in Alabama, California, Florida, Illinois, Missouri, New Jersey, and New York, alleges violation of the consumer protection statutes of multiple states, in addition to various common law claims.  Continue reading »

Ninth Circuit Holds California's Nonfunctional Slack Fill Regulations for Meat and Poultry Are Preempted by Federal Law
Del Real, LLC v. Harris, 636 Fed. Appx. 956 (9th Cir. Feb. 12, 2016)

California enacted statutory prohibitions against nonfunctional slack fill, which is the empty space between a product and its packaging that serves no specified purpose. The California Attorney General appealed a permanent injunction banning enforcement of that prohibition against a producer of heat-and-serve meat and poultry products. Continue reading »

Ninth Circuit Reinstates 'Natural' Labeling Class Suit Against Hain Celestial
Baler v. The Hain Celestial Group, Inc., 640 Fed. Appx. 694 (9th Cir. Feb. 22, 2016)

The Ninth Circuit held that a consumer's definition of "natural" as alleged in the complaint is sufficient for the court's determination of the sufficiency of the pleading with respect to a motion to dismiss. In Balser, putative class action plaintiffs filed suit against the Hain Celestial Group, Inc., accusing Hain of deceptive advertising due to the use of the word "natural" on its products. After the lower court granted Hain's motion to dismiss, the Ninth Circuit reversed and remanded with the following notable findings. Continue reading »

California Court Prevents Second Bite at the Apple Yogurt
Torrent v. Yakult U.S.A., Inc., No.8:15 -cv-00124-CJC-JCG (C.D. Cal., Mar. 7, 2016)

A California court once again held that plaintiff Nicolas Torrent does not have standing to force yogurt manufacturer, Yakult USA, Inc., to change its labeling/advertisements. Torrent brought a putative class action on behalf of California purchasers of Yakult, a yogurt drink. Plaintiff alleged that Yakult's marketing claims about digestive health benefits associated with its yogurt drink were false and likely to deceive reasonable consumers. Torrent filed a motion for class certification under Rule 23(b)(1)(A) and (b)(2). On January 7, 2016, the district court denied plaintiff's motion, determining that he lacked standing to pursue the injunctive relief sought. The district court held that plaintiff lacked standing to bring such a class action because he would not suffer any future harm. See Torrent v. Yakult U.S.A., Inc., No. 8:15-cv-00124-CJC-JCG, 2016 WL 4844106 (C.D. Cal., Jan. 5, 2016). Ten days later, in an attempt to suffer future harm, plaintiff purchased another Yakult yogurt drink and again moved for class certification. The district court again denied plaintiff's motion.  Continue reading »

Sixth Circuit Affirms Dismissal of Class Action Complaints Against Anheuser-Busch for Intentionally Overstating Alcohol Content of its Malt Beverages
In Re: Anheuser-Busch Beer Labeling Marketing and Sales Practices, 644 Fed. Appx. 515 (6th Cir. 2016)

Consumers in seven states brought individual class action lawsuits alleging Anheuser-Busch intentionally overstated the alcohol content of many of its malt beverages on those beverages' labels. Plaintiffs had consumed one or more of the malt beverages and alleged that Anheuser-Busch employed process-control technology enabling it to precisely measure the alcohol content of its malt beverages. Plaintiffs claimed that the technology was not used to produce beverages with the alcohol-by-volume content as listed on the label. Rather, the technology was used to deceive consumers by adding extra water to dilute the alcohol content levels below that found on the labels and thus, allowed Anheuser-Busch to save money on production costs. Plaintiffs claimed they purchased the beverages in reliance on the labels and would not have purchased them had they known the alcohol content was much lower than stated.  Continue reading »

Putative Class Action Against Yogurt Maker Revived by the Ninth Circuit with Directions to Stay the Proceedings in Light of Ongoing FDA Proceedings
Kane, et al v. Chobani, LLC, 645 Fed. Appx. 593 (9th Cir. 2016)

The Ninth Circuit revived a putative class action that alleged defendant Chobani deceptively and unlawfully labeled and sold its Greek yogurt products. Plaintiffs Katie Kane, Arianna Rosales, and Darla Booth, allege that defendant's use of "natural" violated FDA regulations. Specifically, they alleged that the products labeled "all natural" contained artificial ingredients, flavorings, coloring and chemical preservatives, and that defendant deceptively and unlawfully used the term "evaporated cane juice" to describe the products' added sugar without disclosing that the term is synonymous with the term "sugar." Thus, they contend that defendant misled customers into thinking the product contained less sugar than it allegedly did. Continue reading »

Manufacturer Obtains Partial Summary Judgment in Lawsuit Alleging it Violated Consumer Protection Statutes by Labeling and Selling its House-Brand Baked Goods as "All Natural"
Garrison v. Whole Foods Market, Inc., No. 3:13-cv-5222 (N.D. Cal., Mar. 29, 2019) and Garrison v. Whole Foods Mkt. Cal., Inc., No. 3:14-cv-0334 (N.D. Cal., Mar. 29, 2019)

Plaintiffs' putative class action alleged that defendant Whole Foods Market, Inc. violated California consumer protection statutes when it labeled and sold its house-brand baked goods as "all natural." Specifically, plaintiffs alleged that sodium acid pyrophosphate and maltodextrin, both ingredients in defendants' baked goods, are "synthetic." The court granted defendants' motion for summary judgment as to plaintiffs' claims for violations of California's Consumer Legal Remedies Act (CLRA) and the common law claim for breach of contract. The court denied defendants' motion for summary judgment with respect to the claims for violation of California's Unfair Competition Law, the False Advertising Law, and the common law claims of fraud, negligent misrepresentation, and breach of express warranty. Continue reading »

For Want of a Damages Model, Certification Was Lost
Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 1213767 (N.D. Cal., Mar. 29, 2016)

Khasin v. R. C. Bigelow, Inc., No. 12-CV-02204-WHO, 2016 WL 1213767 (N.D. Cal. Mar. 29, 2016), provides a recent example of a class-certification denial premised on the "damages model" rule expressed in Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1433 (2013). As the Northern District of California expressed it: "To satisfy Rule 23(b)(3)'s predominance requirement, a plaintiff must demonstrate that 'damages are capable of measurement on a classwide basis....' At class certification, plaintiff must present a likely method for determining class damages, though it is not necessary to show that his method will work with certainty at this time." Continue reading »

Ninth Circuit Court of Appeals Holds FDCA Does Not Preclude or Preempt Lanham Act Claims by Supplement Manufacturer Against Competitor
ThermoLife Intern., LLC v. Gaspari Nutrition, Inc., 648 Fed.Appx. 609 (9th Cir. 2016)

In ThermoLife Intern., LLC v. Gaspari Nutrition, Inc., supplement maker ThermoLife International, LLC ("ThermoLife") asserted a variety of claims against Gaspari Nutrition, Inc. (GNI) related to Gaspari's alleged false advertising of testosterone products. ThermoLife claimed that GNI falsely advertised its testosterone boosters as "safe," "natural," and "legal," and compliant with the Food, Drug and Cosmetic Act (FDCA). ThermoLife sued GNI for six counts of false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and for unfair competition under Arizona law. Continue reading »

Motion to Dismiss Denied in False "GMO" Advertising Suit Against Chipotle
Reilly v. Chipotle Mexican Grill, Inc., 15-CIV-23425-COOKE/TORRES (U.S.D.C., S.D. Fla., April 20, 2016

A Florida federal judge declined to dismiss a proposed class action against Chipotle Mexican Grill, Inc. accusing the company of deceptively advertising that its foods contain non-GMO ingredients. The plaintiff alleged, in short, that Chipotle sources its meat and dairy products from animals raised on GMO-rich feed, hence the company's food products are not GMO-free as advertised. Continue reading »

Whole Foods Wins Dismissal of PETA's Lawsuit Over Company's Claims About How Meat is Raised
PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301, 2016 U.S. Dist. LEXIS 55601, (N.D. Cal., April 26, 2016)

Plaintiffs in this putative class action alleged that defendants Whole Foods Market Services, Inc., Whole Foods Market California, Inc., and Mrs. Gooch's Natural Food Markets, Inc., fraudulently marketed meat sold in their stores. People for the Ethical Treatment of Animals, Inc. (PETA), an international animal protection organization, and Lori Grass, a California citizen, together sought to represent a class of consumers who purchased Whole Foods' meat products during a four-year period. Specifically, plaintiffs claimed that defendants fraudulently enticed consumers to pay a premium price on its meat products by advertising them as a "more humanely treated, higher quality animal product" in violation of California's Unfair Competition Law (UCL), Consumers Legal Remedies Act (CLRA), and False Advertising Law (FAL). Continue reading »

Sixth Circuit Affirms Dismissal of Putative Class Action Claims Against Kraft Foods Global, Inc. and Starbucks
Montgomery v. Kraft Foods Global, Inc., 822 F.3d 304 (6th Cir. 2016)

This putative class action arose because plaintiff Pamella Montgomery purchased a Tassimo, a single-cup coffee brewer manufactured by Kraft Foods, expecting it to brew Starbucks coffee because it bore a sticker reading: "Featuring Starbucks® Coffee." Because Starbucks later announced its plan to terminate its distribution agreement with Kraft and thus her expectations were not met, she sued Kraft Foods and Starbucks on behalf of a class for violations of the Michigan Consumer Protection Act (MCPA), breach of express and implied warranties, and breach of contract. Continue reading »

Ninth Circuit Revives Proposed Class Action Against Convenience Store Regarding Nutritional Content of Private Brand Potato Chips
Bishop v. 7-Eleven, Inc., 651 Fed. Appx. 657 (9th Cir. 2016)

Plaintiff Scott Bishop filed a proposed class action against defendant 7-Eleven based on allegations that the convenience store chain's private-label potato chips are deceptive. According to plaintiff, the front of the potato chips package states "0g trans fat" and "no cholesterol," despite the fact that the product actually contains some small amounts of trans fat and cholesterol. Thus, he claimed he would not have purchased the product if defendant had included the disclosure "See nutritional information for fat content" on the package, as required by the U.S. Food and Drug Administration (FDA). Continue reading »

Ninth Circuit Addresses Standing, State Claims, Preemption, and Primary Jurisdiction in Consumer Class Action Against Energy Drink Manufacturer
Fisher, et al. v. Monster Beverage Corporation, et al., 656 Fed Appx. 819 (9th Cir. 2016)

In Fisher, et al. v. Monster Beverage Corp., et al., plaintiffs Alec Fisher ("Fisher"), Matthew Townsend ("Townsend"), and Ted Cross ("Cross"), brought a putative class action against energy drink manufacturer Monster Beverage Corp. ("Monster"). The plaintiffs claimed that Monster engaged in unfair and deceptive business and trade practices by representing that a line of its drinks could rehydrate like a sports drink, and by omitting the potential health risks associated with the frequent consumption of caffeinated drinks, in violation of California's Unfair Competition Law (UCL), California's False Advertising Law (FAL), and California's Consumers Legal Remedies Act (CLRA). The U.S. District Court for the Central District of California dismissed Fisher's complaint and he appealed. Continue reading »

Olive Oil Manufacturer's "Imported from Italy" Representation On Product Label Results in Certification of Consumer Fraud Class Action
Kumar v. Salov N. Am. Corp., No. 4:14-cv-02411-YGR, 2016 WL 3844334 (N.D. Cal., July 15, 2016)

The Northern District of California certified a class of "All purchasers in California of liquid Filippo Berio brand olive oil of any grade ... between May 23, 2010 and August 31, 2015." Plaintiff brought this class action contending that purchasers of defendant's olive oil products were deceived as to the origin of defendant's olive oil by misleading labels on the bottles stating the products were "Imported from Italy," but the oil is not produced in Italy. Rather, according to plaintiff, defendant's olive oil is "produced in Tunisia, Greece, and Spain, then shipped to Italy, mixed with a small amount of Italian olive oil, bottled, and sold to consumers." Continue reading »

Ninth Circuit Affirms Dismissal of Putative Class Action Against Lip Balm Manufacturer Accused of Deceiving Customers as to Product Amount
Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016)

The amended opinion filed September 27, 2016, is identical to the original opinion, with one exception. In discussing the reasonable consumer standard, the court addressed plaintiff's reliance on Williams v. Gerber Prods. Co., 552 F. 3d 934 (9th Cir. 2008). Continue reading »

Summary Judgment for Tito's Vodka Makers in Case Alleging Their Product is Not Made in an Old-Fashioned Pot Still
Pye v. Fifth Generation, et al., Case No. 4:14-cv493-RH/CAS (N.D. Fla., Sept. 27, 2016)

Plaintiffs Shalinus Pye and Raisha Licht filed a lawsuit against defendants Fifth Generation, Inc. and Mockingbird Distillery Corporation alleging they purchased Tito's Handmade Vodka in reliance on defendants' statement on the label that Tito's is "handmade" and made in "an old-fashioned pot still." Plaintiffs sought to represent a class of Florida buyers of Tito's. The first amended complaint which asserted claims based on breach of express warranty, breach of implied warranty, negligence, unjust enrichment, violations of Florida's Deceptive and Unfair Trade Practices Act, and violations of Florida's bait-and-switch advertising statutes. Continue reading »

Ninth Circuit: Food Manufacturers May Be Liable for Misleading Consumers If They Label Foods Containing Synthetic Citric and Ascorbic Acid "Natural"
Brazil v. Dole Packaged Food, LLC.,  No. 5:12-cv-01831 (9th Cir., Sep. 30, 2016)

The Ninth Circuit reversed in part a district court decision granting summary judgment to defendant Dole Packaged Foods, LLC ("Dole"), finding that a reasonable fact-finder could conclude that defendant's description of its products as "All Natural Fruit" is misleading to a reasonable consumer. Continue reading »

Motion to Dismiss Denied in Renewed False "GMO" Advertising Class Action Against Chipotle
Schneider v. Chipotle Mexican Grill, Inc., No. 16-cv-02200-HSG, 2016 WL 6563348 (N.D. Cal., Nov. 4, 2016)

A federal judge in California declined to dismiss a (renewed) proposed class action case against Chipotle Mexican Grill, Inc., accusing the company of violating consumer protection laws in California, Florida, Maryland, and New York by deceptively advertising that its menu no longer contained GMOs. The plaintiffs alleged, in short, that Chipotle's menu is not GMO-free as advertised, because its meat and dairy products are sourced from animals raised on genetically engineered or GMO-derived feed and its soft drinks contain GMO-derived ingredients. Continue reading »

Ninth Circuit Rejects GMO and Pesticide Bans in Three Hawaii Counties Because State and Federal Laws Preempt the Local Regulations
Alika Atay, et al. v. County of Maui, et al., 842 F.3d 688 (9th Cir. 2016); Hawaii Papaya Indus. Assn., et al. v. County of Hawaii, No. 14-17538, 2016 WL 6819700 (9th Cir. 2016); Syngenta Seeds, Inc., et al. v. County of Kauai, et al., 842 F.3d 669 (9th Cir. 2016); and Robert Ito Farm, Inc., et al. v. County of Maui, et al., 842 F.3d 681 (9th Cir. 2016)

The Ninth Circuit concluded that actions taken by individual counties in the State of Hawaii to regulate pesticides and biotech crops were preempted by state and federal law, in part. In four separate rulings, for separate appeals all relating to the regulations passed in Kauai County, Maui County, and Hawaii County, the appeals court held that federal and state regulatory schemes regulating harmful plants and pesticides preempted the counties from enacting their own rules.  Continue reading »

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.