FOOD D I G E S T J A N U A R Y 2 0 2 3 BEVERAGE % reading value Edition Facts 2 Sections This Edition Cases Per Section 2-12 Reading Calories 0 New Lawsuits Filed 100% Motions To Dismiss 100%
FOOD BEVERAGE D I G E S T J A N U A R Y 2 0 2 3 | 3 New Lawsuits Filed Plaintiffs Enter 2023 Livid About Lead Lazazzaro v. The Hershey Co., No. 2:22-cv-07923 (E.D.N.Y. Dec. 28, 2022). ’Twas a few nights before New Year’s when all through the house, not a creature was stirring … except for the plaintiffs’ bar. Undeterred by the holiday spirit, on December 28, 2022, a New York resident sued a major chocolate manufacturer, alleging that its dark chocolate products contain unsafe levels of lead and cadmium. The plaintiff cites unnamed public reports and articles in defense of its chocolaty-rich claims, arguing that the company advertised its candy bars as containing only dark chocolate ingredients safe for consumption when, in fact, they contained unsafe levels of lead and cadmium. To be clear, according to the putative class action complaint, any amount of either lead or cadmium would have put these chocolate bars on Santa’s naughty list. Unfortunately, these stocking stuffers purportedly contained both, and a lot of it. The named plaintiff contends that had he known about the presents of these elements, he would not have purchased the chocolate bars or would have, at the very least, waited for the after-Christmas sales before making a purchase. Now he seeks to represent a nationwide class of consumers, as well as a subclass of New York citizens, to pursue claims for violations of New York’s consumer protection laws, breach of implied warranty, and unjust enrichment. Unforgiven: Ranch Waters Told to Stick ’Em Up in Illinois Federal Court Pautz v. Heineken USA Inc., No. 3:22-cv-02911 (S.D. Ill. Dec. 12, 2022). Nootens v. Molson Coors Beverage Company, No. 1:22-cv-07010 (N.D. Ill. Dec. 13, 2022). “Reach for the sky!”It is a phrase that could be attributed to a particular animated toy cowboy, but we would prefer to think it’s what the plaintiffs hollered when they filed putative class actions challenging two ranch-water-style hard seltzers. According to two suits filed by Sheehan & Associates P.C. in Illinois federal courts, the two ranch-water hard seltzers mislead reasonable consumers into falsely believing that the products contain tequila. In reality, so the plaintiffs claim, the products’ alcohol base is made from fermented sugar. The complaints allege that ranch water is a cocktail harkening back to the days of cowboys and made from tequila, lime, and carbonated water. According to the city slickers over at Sheehan & Associates, this sugary deception was a real burr in the plaintiffs’ saddle because modern-day cowboys are shifting their sights away from sugary, high-calorie cocktails in search of “real” ranch water. The plaintiffs claim that this conduct warrants calling in the marshal—or at least a fistful of dollars—and seek to certify Illinois and multistate classes for consumer protection, breach of warranty, misrepresentation, and unjust enrichment claims. Too bad filing deadlines are at midnight instead of high noon. Plaintiffs’ Bar Kneads Dough Hornthal v. Whole Foods Market Inc., No. 1:22-cv-07114 (N.D. Ill. Dec. 16, 2022). It’s January of a new year and resolutions abound. “I’ll eat healthier!”“I’ll go to the gym!”“I’ll …. make sure I’m not short-changed on my pizza portions?”That’s right, one Illinois plaintiff is breaking the mold and kneading up a putative class action in the Northern District of Illinois to ensure that those forgoing the beginning-of-the-year cleanse receive as much pizza as advertised. Specifically, the plaintiff contends that in some stores, a major grocer has been advertising its prepared whole hot pizzas as an “18" Hot Pizza,” “18" hand-stretched pizzas,” and “18" Whole Pies,”when in reality, the pizza pies are only 16 inches and are sold in 16-inch by 16-inch boxes. The plaintiff contends that based on the 18-inch promotional representations, he purchased a pizza from the grocer “rather than other pizza restaurants because of the advertised pizza size,” and that had he known the truth—that he’d be receiving a pie 20% smaller in area—he would not have purchased a pizza from the grocer. According to the complaint, the grocer knew or should have known of its inadequate pizza pie size because it sells pizzas in 18-inchsized boxes at some of its locations. The plaintiff urges that he would not have purchased the pies had he known that he would receive a pizza that was purportedly 50 square inches less than advertised. He brings claims for breach of express and implied warranties, unjust enrichment, and violation of the Illinois Consumer Fraud Act. He seeks to represent a nationwide class of consumers who were similarly duped by the pizza-pie size claims. Too Sweet to Be True! Michael v. Nutrishus Brands Inc., No. 2:22-cv-08746 (C.D. Cal. Dec. 2, 2022). A trio of sweet-toothed plaintiffs were shocked and appalled to find that the liquid sugar and chocolate and maple syrup products they’d been guzzling down did not provide the “benefits and value for the human body”that they were seeking. That’s right, after purchasing and consuming liquid sweeteners, which featured labeling claims that the products were “0 calories,” “0 net carbs,” or “0 glycemic,” these plaintiffs are coming down from their sugar high and seeking vengeance on the defendant for allegedly intentionally making false and misleading representations about its RxSugar line of flavored liquid syrups. You see, when the plaintiffs saw those representations on the liquid syrups, they claimed—as any reasonable consumer obviously would—that they could “consume the substitute syrup without side effects of weight gain, diabetes, or diabetes aggravation.”But, in a shocking twist, it turns out the liquid syrup did not deliver the “health benefits” they were looking for. The crux of the complaint is that, while the product labeling is “technically correct,” none of the claims are true because they’re based on manipulated and incorrect serving sizes. The plaintiffs claim that to effectuate the alleged scheme to take advantage of those seeking “healthier forms of desserts and sweet foods,” the defendant used a serving size lower than the reference amount that is customarily consumed (RACC), a serving size set by the FDA for specific foods. While the RACC for syrup substitutes is two tablespoons, the complaint
FOOD BEVERAGE D I G E S T J A N U A R Y 2 0 2 3 | 5 alleged that the defendant marketed its products based only on a single tablespoon serving size, and that as a result of FDA regulations allowing food items with less than 5 calories to round down and claim the product contains “0 calories,” the defendant was able to make its front-of-pack claims. According to the complaint, however, if the product was marketed at the RACC serving size, it would be required to disclose that it contained 10 calories, which the defendant allegedly did onmodified labels after receiving the plaintiffs’Consumers Legal Remedies Act letter. Based on those allegations, the plaintiffs seek relief on behalf of themselves and a class of California consumers for common-law fraud, intentional misrepresentation, negligent misrepresentation, and unjust enrichment in addition to violations of California’s consumer protection statutes. Snack-Sized Fiber Optics Halim v. Kind LLC, No. 1:22-cv-10979 (S.D.N.Y. Dec. 30, 2022). Suppose a manufacturer made accurate claims about the nutrient content of its food based on the recommended serving size. But suppose that when you cut the serving size by 54%, the nutrition claims are no longer accurate. Would the nutrient content claims on the packaging therefore be false and misleading? According to a new complaint filed in the Southern District of New York, yes! That’s right, the infamous plaintiffs’attorney, Spencer Sheehan, has dared to ask the question, “What if I manipulated the facts to serve my interests?” and the result is this complaint. The plaintiff, a Chicago resident, purchased the defendant’s granola, which is advertised as “High in Fiber.” According to the complaint, in order to make such a claim, a product must contain 20% or more of the recommended daily intake (RDI) of fiber in a serving size. The defendant’s packaging describes two serving sizes, “Snack” and “Bowl.”While the Bowl serving contains 32% of the RDI of fiber, the Snack serving contains only 14%. We’re heading into the weeds here, but the Bowl serving size is based off of the standard serving size for breakfast cereals, and the front of the package states that the “High in Fiber” claim is based on the Bowl serving size. Despite a split nutrient panel showing the amount of fiber available in each serving, and the label noting that the recommended serving size is 65 grams (the cereal or “bowl” portion), the plaintiff contends that the product’s “correct serving size” is 30 grams and that the defendant “does not really believe its Product is a cereal,” therefore making its “High in Fiber” representations false and misleading. Based on those allegations, the plaintiff brings claims under a number of states’ consumer protection statutes and alleges breach of warranty, fraud, and unjust enrichment. Cough-Drop Complaint All Wheeze and No Bark? Solak v. Prestige Consumer Healthcare Inc., No. 3:22-cv-01357 (N.D.N.Y. Dec. 16, 2022). Well, folks! It’s that time of year—the post-holiday blues bring with it the sniffles and coughs emblematic of Cold Season. While some are content to pop in their favorite flavored lozenge to soothe scratchy, dry throats this time of year, others are apparently choking on the realization that their lozenges are not flavored with real fruit ingredients. Represented by the flavor police himself—Spencer Sheehan—one plaintiff has apparently had enough. In what has become a growing trend over recent months, the plaintiff alleges that the defendant’s lozenges are falsely labeled as “Wild Cherry” with misleading depictions of two cherries and a cherry leaf on the front packaging. According to the complaint, the cough drop’s label misleads consumers into believing that the drops’ taste comes exclusively from cherry ingredients and without any artificial flavoring ingredients. While the complaint recognizes that over-the-counter drug products like throat lozenges are not required to designate the source of their flavor in the same way as food products, it argues that they still must refrain from false and misleading representations. The complaint also points out that “the ingredient list reveals the absence of cherry ingredients,” but claims that had the plaintiff known the wild cherry flavor was from artificial flavors from non-cherry sources, he would not have purchased the product, or would have paid less for it. Based on these allegations, the plaintiff seeks to represent New York and multistate classes of purchasers, asserting claims for violation of state consumer protection statutes, breach of warranty, violation of the Magnuson–Moss Warranty Act, fraud, and unjust enrichment. Cough-Drop Complaint Isn’t Just Another Rinse and Repeat Singo v. Ricola USA Inc., No. 7:22-cv-10369 (S.D.N.Y. Dec. 7, 2022). We noted above that attacks on cough drops and throat lozenges are coming in fast and furious this winter. At Sheehan & Associates P.C., they’re filing these complaints at a torrid pace. It’s a real spin cycle right now… literally. That’s right, a new Sheehan-drafted complaint purportedly attacks a cough dropmanufacturer’s“GreenTea with Echinacea” label and image of a pink echinacea flower next to a green lozenge, but then alleges that the plaintiff “paid more for the Product than she would have had she known the amount of detergent was sufficient for roughly half of that number of loads of laundry, or would not have purchased it.”Seems like someone at the firm needs to run their Word clipboard through the rinse cycle. Putting aside that small wrinkle, the complaint alleges that the lozenge’s labeling is deceptive because when consumers see the label statement and pictures, they will expect that the product achieves its cough suppression and soothing effects from green tea and echinacea. In reality, the complaint continues, green tea and echinacea are only inactive ingredients. According to the complaint, the cough suppressant and soothing effects of the lozenge purportedly come from the only active ingredient listed on the drops—menthol—and the
FOOD BEVERAGE D I G E S T J A N U A R Y 2 0 2 3 | 7 plaintiff argues that the defendant’s label runs afoul of federal labeling regulations and diverges from competitors’ cough drop labels, which according to the complaint, disclose the menthol ingredient included in these products on their front labels. Based on these claims, the plaintiff seeks certification of a New York and multistate class of purchasers, asserting claims for violation of state consumer protection statutes, breach of warranty, violation of the Magnuson–Moss Warranty Act, and unjust enrichment. We’ll stay tuned to see whether the judge decides to wring out these claims at the motion to dismiss stage or whether the plaintiff chooses to iron out these recycled allegations in a freshly pressed amended complaint. “Natural” Flavoring Suits Still Fizzing Up Cameron v. The Kroger Co., No. 1:22-cv-00694 (S.D. Ohio Nov. 28, 2022). This plaintiff pops the top of another putative class action, signaling if nothing else that “natural” flavoring lawsuits won’t be fizzling out anytime soon. The plaintiff targets the defendant’s house brand of sparkling water, alleging that the defendant falsely represents its beverages as being “Naturally Flavored,” despite the alleged inclusion of malic acid in its artificial form (DL-malic acid). According to the complaint, the labels’ “Naturally Flavored” statement misleads consumers into believing that the carbonated product is formulated with only “natural” flavoring ingredients and without any artificial flavoring ingredients, such as DL-malic acid. Although admitting that the ingredients list discloses the presence of malic acid, the plaintiff claims that the words “artificially flavored” should appear on the beverage labels pursuant to federal and state regulations. The plaintiff argues that without an “artificially flavored” statement, consumers are led to believe that the product’s malic acid ingredient is the natural form, rather than artificial DL-malic acid. The Ohio-based plaintiff brings suit on behalf of herself and Ohio and Tennessee subclasses of purchasers. She asserts claims for breach of express warranty, fraud by omission or fraudulent concealment, fraud, unjust enrichment, money had and received, and violations of state consumer protection and recovery statutes. Despite the popularity of these “natural” flavoring suits with the plaintiffs’ bar of late, these suits tend to fall flat in federal court. But rest assured, we’ll monitor this one and let you know whether this suit suffers a similarly fizzy fate. What’s in an Ice Cream’s Name? Duncan v. Kahala Franchising LLC, No. 2:22-cv-07841 (E.D.N.Y. Dec. 23, 2022). A class action complaint filed in New York federal court includes some false-labeling allegations with a twist! As long-time readers of this digest know, we’ve covered many an ice cream suit in the past. And like several of those previous complaints, the plaintiff here takes aim at a defendant ice cream retailer’s marketing of its ice cream and sorbet products, claiming that the defendant’s use of specific ingredients in the product names misleads consumers into believing that the treats actually contain the ingredients mentioned in their names (think “Pistachio” and “Mango,” for example). The twist, you ask? Well, the allegations involve the defendant’s in-store marketing to consumers. According to the complaint, the defendant names the products for sale in its ice cream shops using the products’specific ingredients. But the plaintiff alleges those names are false and misleading because the sweet treats don’t actually contain the ingredients called out in their names, arguing that they are merely flavored with those ingredients instead. That is, the plaintiff claims that her “Pistachio” named ice creammarketed in-store should contain actual pistachios, not just pistachio flavoring. These types of allegations led us to wonder what ingredients this plaintiff would expect to find in Moose Tracks ice cream, or Rocky Road, or Neapolitan…. Anyway, according to the plaintiff, when ordering the defendant’s ice cream or sorbet instore, nothing appears near the products to indicate the products’ ingredients. The plaintiff claims that it was only after venturing to the defendant’s website that she discovered the defendant’s ice cream was only flavored with the ingredients in the product name. (Food for thought: what would rainbow ice cream, flavored with rainbows, taste like?!) Based on these allegations, the plaintiff brings suit individually and on behalf of a class of New York purchasers. She asserts claims for violation of New York’s consumer protection statutes, breach of express and implied warranty, and unjust enrichment. Not to worry, readers—if this one melts in federal court, we’ll be sure to let you know. Coffee Creamer, Hold the Cream Jasper v. Danone North America Public Benefit Corp., No. 1:22-cv-07122 (N.D. Ill. Dec. 19, 2022). New year, same claims! In this putative class action, a lactose-loving plaintiff (represented by one Spencer Sheehan) alleges that the defendant manufacturer falsely labels its product as a “Coffee Creamer,” when the product allegedly lacks cream or dairy ingredients—that is, aside from a de minimis amount of sodium caseinate, the complaint admits. (Sound familiar? We thought so!) According to the complaint, instead of cream, the product uses water and palm oil ingredients without stating on the label that the product is “non-dairy”or is “a vegetable product – contains no milk or milk fat.”The plaintiff seeks to certify an Illinois class of purchasers, as well as a multistate class of persons who purchased the product in the great states of Arkansas, South Dakota, Wyoming, North Carolina, Utah, Montana, Idaho, Mississippi, Virginia, and Oklahoma. The complaint asserts claims for violations of state consumer protection statutes, breaches of warranty, violation of the Magnuson–Moss Warranty Act, negligent misrepresentation, fraud, and unjust enrichment. Greenwashing Claims Go Back to the Well Muto v. The Coca-Cola Co., No. 3:21-cv-04643 (N.D. Cal. Dec. 9, 2022). In an amended complaint against a large beverage manufacturer and other bottling companies, the Sierra Club and a proposed class of consumers allege that the defendants
FOOD BEVERAGE D I G E S T J A N U A R Y 2 0 2 3 | 9 deceive reasonable consumers by falsely labeling their single-use plastic bottles as “100% recyclable.” The plaintiffs’ claims were previously poured out after the court concluded that “no reasonable consumer would understand ‘100% recyclable’ to mean that the entire product will always be recycled or that the product is ‘part of a circular plastics economy in which all bottles are recycled into new bottles to be used again.’” Now the plaintiffs are going back to the well to take a second swig and have alleged that the “100% recyclable” claim is actually false because a substantial number of recycling programs in California do not recycle the polypropylene and high-density polyethylene bottle caps and the biaxially oriented polypropylene bottle labels. The plaintiffs also claim that at least 28% of the total plastic material in the bottles cannot be recycled and ends up in landfills or burned. Based on these allegations, the plaintiffs seek to certify California and nationwide classes of purchasers and spray the defendants with claims for violations of California’s consumer protection statutes, fraud, deceit and/or misrepresentation, and negligent misrepresentation. Motions To Dismiss Procedural Posture: Granted “Cold Pressed” Juice Relieved from the Squeeze Cristia v. Trader Joe’s Co., No. 1:22-cv-01788 (N.D. Ill. Dec. 9, 2022). A federal judge crushed a complaint in Illinois federal court, dismissing claims against the defendant’s “cold pressed juice” products. According to the complaint, the defendant’s “cold pressed juice” labeling statement, coupled with the product’s placement in the refrigerated aisle, misleads consumers into believing that the juice is“extracted fromfruits and vegetables” and not subject to any additional forms of processing or preservation methods. The plaintiff claimed that, despite the “cold pressed juice” statement on the product’s front label, the product was made using the cold press method and was subjected to additional processing, which contravenes consumers’ expectations of “cold pressed.” But the judge didn’t bite. The court first chopped the complaint for the plaintiff’s failure to establish standing to pursue injunctive relief based on a failure to demonstrate a likelihood of future harm from the defendant’s packaging. On the merits, the court dismissed the complaint in full, leaving no juice left for the squeeze. According to the court, the plaintiff’s interpretation of the label proved “unreasonable” based on a failure to proffer sufficient evidence that other consumers share in the plaintiff’s interpretation of the label and based on the product’s side-label disclosures that plainly state that the juice product is further processed. The court also noted the FDA’s public service announcement stating that juices sold in the United States are further treated to kill harmful bacteria as support for the notion that reasonable consumers would be aware that juice is routinely processed to avoid contamination. Ultimately, the court found the plaintiff’s interpretation of the “cold pressed juice” label to be unreasonable and held that the label is not deceptive as a matter of law. Procedural Posture: Granted in part Fizzy Challenge to “Naturally Flavored” Fizzy Water Fizzes On Tatum v. Talking Rain Beverage Co. Inc., No. 3:22-cv-03525 (N.D. Cal. Dec. 5, 2022). The plaintiff alleged that she purchased “Sparkling Ice” beverages and challenged that statements representing the products are “naturally flavored” were false or misleading because the products actually contain artificial DL-malic acid. The defendant moved to dismiss these claims, arguing, in part, that they were either preempted by the Federal Food, Drug, and Cosmetic Act or failed to state a plausible claim for relief. In an order largely denying themotion to dismiss, the district court concluded that the plaintiff’s allegations were sufficient to survive the motion to dismiss. In doing so, the district court relied on the plaintiff’s allegations that a commercial testing laboratory confirmed that DL-malic acid is used in the products; that DL-malic acid functions primarily as an artificial flavoring agent in the products; and that DL-malic acid simulates, resembles, or reinforces the characterizing fruit and berry flavors of the products. Whether the plaintiff is actually correct that the malic acid serves as a “flavor,” reasoned the court, is a factual determination to be resolved on another day and on a different motion, one with a bit more of an evidentiary flavor to it. The district court did, however, provide a bit of sparkle for the defendant, finding that the plaintiff’s challenge to the products’ ingredients list, which alleged that the list failed to indicate that the malic acid was artificial, was preempted under operative FDA regulations.
FOOD BEVERAGE D I G E S T Angela Spivey 404.881.7857 angela.spivey@alston.com Sean Crain 214.922.3435 sean.crain@alston.com Reagan Drake 404.881.7150 reagan.drake@alston.com Jamie George 404.881.4951 jamie.george@alston.com Samuel Jockel 202.239.3037 sam.jockel@alston.com Barbara Jones-Binns 202.239.3139 barbra.jones-binns@alston.com Taylor Lin 404.881.7491 taylor.lin@alston.com Contributing Authors Rachel Lowe 213.576.2519 rachel.lowe@alston.com Andrew Phillips 404.881.7183 andrew.phillips@alston.com Alan Pryor 404.881.7852 alan.pryor@alston.com Troy Stram 404.881.7256 troy.stram@alston.com Amanda NewtonWellen 404.881.4809 amanda.wellen@alston.com Krupa S. Zachariah 202.239.3241 krupa.zachariah@alston.com Learn more about our Food & Beverage Team
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