Food Litigation Newsletter – May 2015

In This Issue:

– RECENT SIGNIFICANT RULINGS

..Court Dismisses in Part “Natural” Claims

..Court Enters Partial Dismissal of “Handmade” Claims

..Court Dismisses Injunctive Relief Claim Allows Others to Proceed

..Court Strikes Complaint As “Shotgun Pleading”

..Court Grants Summary Judgment on Antioxidant Claims

– NEW FILINGS

– Excerpt from Court Dismisses in Part “Natural” Claims:

Barron v. Snyder’s-Lance, Inc., No. 0:13-cv-62496 (S.D. Fla.): In a putative class action complaint alleging numerous claims under various states’ consumer protection statutes, based on the allegation that Defendant’s products were misrepresented as “natural” when they contain GMOs and other artificial and synthetic ingredients, the Court granted in part and denied in part Defendant’s motion to dismiss.

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05.11.2015 | ISSUE NO. 51
ABOUT
Perkins Coie’s Food
Litigation Group defends
packaged food companies
in cases throughout the
country.
Please visit our website at
perkinscoie.com/foodlitnews
for more information.
THIS NEWSLETTER AIMS to keep those in the food
industry up to speed on developments in food
labeling and nutritional content litigation.

RECENT SIGNIFICANT RULINGS
Court Dismisses in Part “Natural” Claims
Barron v. Snyder’s-Lance, Inc., No. 0:13-cv-62496 (S.D. Fla.): In a putative class action
complaint alleging numerous claims under various states’ consumer protection statutes,
based on the allegation that Defendant’s products were misrepresented as “natural”
when they contain GMOs and other artificial and synthetic ingredients, the Court
granted in part and denied in part Defendant’s motion to dismiss.
Previously in the litigation, nine of the thirteen party Plaintiffs filed notices of voluntary
dismissal without prejudice. In light of that, the Court dismissed without prejudice the
claims brought under the laws of those states for lack of standing. Similarly, there were
two claims brought under the laws of North Carolina that the court dismissed because
no named Plaintiff resides in or purchased Defendant’s products there. Finally, the
Court dismissed without prejudice a claim for breach of express warranty under
Missouri law, finding that proper notice of the breach was not given.
The Court found that Plaintiffs lacked standing to pursue injunctive relief as they had
not established a real and immediate threat of future injury because they had not
alleged that they intended to purchase the allegedly mislabeled products again. The
Court also found that Plaintiffs lacked standing to assert claims regarding products they
did not purchase, though noted the split in authority on the topic outside of the Eleventh
Circuit.
As a result of the ruling, the Plaintiffs are limited to state claims for which there is a
named Plaintiff in that state and for claims against products that a named Plaintiff
actually purchased. Order.
Court Enters Partial Dismissal of “Handmade” Claims
Hofmann v. Fifth Generations Inc., No. 3:14-cv-02569 (C.D. Cal.): In this putative class
action alleging violations of California’s UCL, FAL, and CLRA, as well as negligent
misrepresentation based on claims that Defendant falsely calls its product “Tito’s
Handmade Vodka” when the process is actually highly mechanized, the Court granted
in part and denied in part Defendant’s motion to dismiss and granted Plaintiff’s request
for leave to amend.

© 2015 Perkins Coie LLP. Some jurisdictions in which Perkins Coie LLP practices
law may require that this communication be designated as Advertising Materials.
PerkinsCoie.com/food_litigation

05.11.2015 | ISSUE NO. 51
The Court granted Defendant’s motion to dismiss with respect to all statutory claims.
In doing so, the Court noted that Article III standing requires both that Plaintiff show
he was deceived by the product’s label into spending money and also that he would
not have purchased it but for the alleged deception. In this case, Plaintiff stated only
in his cause of action for misrepresentation that he would not have purchased the
product but for the alleged deception; he did not do so in the paragraphs that
support his statutory claims, thus the Court found Plaintiff did not allege sufficient
injury-in-fact for the statutory claims. However, the Court granted Plaintiff’s request
for leave to amend.
The Court went on to address several other arguments by Defendant that attempted
to challenge the remaining misrepresentation claim or enable the Court to dismiss
the complaint without leave to amend. The Court shot each of them down with
relative ease, spending some time on Defendant’s safe harbor argument, but
ultimately finding that it wasn’t clear that the Alcohol and Tobacco Tax and Trade
Bureau’s approval of Defendant’s label was sufficient to invoke the safe harbor.
Order.
Court Dismisses Injunctive Relief Claim Allows Others to Proceed
Seidman v. Snack Factory LLC, No. 14cv62547 (S.D. Fla.): In this putative class
action alleging violations of Florida’s DUTPA, the Magnuson-Moss Warranty Act,
negligent misrepresentation, breach of express warranty and unjust enrichment,
claiming Defendant falsely labels its Pretzel Crisps as “all natural” when they contain
synthetic or artificial ingredients such as maltodextrin, soybean oil, dextrose and
caramel color, the Court granted in part and denied in part Defendant’s motion to
dismiss. The Court found that Plaintiff is not entitled to injunctive relief because he
does not allege he will ever purchase the products at issue again, dismissing the
claim with prejudice. The Court allowed the remaining claims to proceed. Order.
Court Strikes Complaint As “Shotgun Pleading”
Hulse v. Wal-Mart Stores, Inc., No. 15cv0233 (M.D. Fla.): In this putative class
action alleging violations of Florida’s DUTPA, negligent misrepresentation, and
unjust enrichment based on claims that defendant’s cranberry-pomegranate juice is
misleadingly and unfairly labeled and marketed as “Cranberry Pomegranate,” when
the juice is actually a flavored juice from concentrate, the Court struck the complaint
sua sponte.
In striking the complaint the Court found the complaint to be an instance of “shotgun
pleading.” In addition, the Court found that Plaintiff did not identify Defendant’s
citizenship, nor did she come close to pleading the required amount in controversy.
Lastly the Court denied without prejudice Plaintiff’s motion for class certification.
Order.

© 2015 Perkins Coie LLP. Some jurisdictions in which Perkins Coie LLP practices
law may require that this communication be designated as Advertising Materials.
PerkinsCoie.com/food_litigation

05.11.2015 | ISSUE NO. 51

Court Grants Summary Judgment on Antioxidant Claims
Khasin v. The Hershey Co., No. 5:12cv01862 (N.D. Cal.): In this putative class
action alleging claims under California’s UCL, FAL, CLRA, and unjust enrichment
claiming Defendant made misrepresentations about its products spanning
antioxidant claims, nutrient content claims without the proper disclosures, health
claims, sugar free claims, unlawful serving sizes, improperly listing polyglycerol
polyrincoleic acid, and failing to disclose vanillin, the Court granted summary
judgment in favor of Defendant.
As reported here, previously the Court had dismissed all of Plaintiff’s claims except
for the UCL claim concerning the statement “natural source of flavanol antioxidants”
on certain labels of Defendant’s dark chocolate and cocoa product. The Court
dismissed this remaining claim for two main reasons. First, the Court found that
Plaintiff was unable to meet his burden as to whether a reasonable consumer would
be misled by Defendant’s statements. The evidence provided went more to how a
reasonable consumer could react, not how they actually did react. Second, the
Court found that Plaintiff did not meet his burden of showing he suffered economic
injury through loss of money or property as a result of Defendant’s alleged deceptive
labeling. Rather than attempting to show economic injury, Plaintiff claimed his
purchases were “legally worthless” because they were inaccurate representations of
what he thought he was purchasing. Order.
NEW FILINGS
Charles v. The Wine Group, Inc., No. BC576061 (Cal. Super. Ct.): Putative class
action alleging violations of California’s CLRA, as well as unfair business practices,
misleading and deceptive advertising, unjust enrichment, breach of implied warranty
and negligent misrepresentation based on the claim that Defendants’ wines contain
inorganic arsenic in that levels that are not reasonably safe to consumers. The
Plaintiffs do not claim that the Defendants were under any obligation to keep
inorganic arsenic to a certain amount or that they are required by law to warn
consumers of the ingredients in the wine. Complaint.
Marvin v. The Wine Group, Inc., No 3:15-cv-00176 (M.D. La.): Putative class action
alleging violations of Louisiana’s Deceptive and Unfair Trade Practices Act and the
Magnuson-Moss Warranty Act, as well as redhibition, negligence, and unjust
enrichment based on the claim that Defendants’ wines contain inorganic arsenic in
that levels that are not reasonably safe to consumers and are above those allowed
in drinking water. Complaint.
Mirzaie v. Whole Foods Market, No. BC575935 (Cal. Super. Ct.): Putative class
action alleging violations of California’s business and professional code regarding
false and misleading advertisements based on the claim that Defendants advertise
that their chickens are gently raised and lovingly slaughtered on farms with
standards that exceed conventional factory farms when there is no difference.
Complaint.

© 2015 Perkins Coie LLP. Some jurisdictions in which Perkins Coie LLP practices
law may require that this communication be designated as Advertising Materials.
PerkinsCoie.com/food_litigation

05.11.2015 | ISSUE NO. 51
CONTACTS
DAVID BIDERMAN
Partner
Los Angeles and San Francisco
+1.310.788.3220
CHARLES SIPOS
Partner
Seattle
+1.206.359.3983
BREENA ROOS
Counsel
Seattle
+1. 206.359.6225

Consumer Advocacy Group v. Yamamoto of Orient, Inc., No.
CIV1501046 (Cal. Super. Ct.): Complaint alleging violations of
Proposition 65 based on claims that Defendants’ seaweed contains lead.
Complaint.
Nixon v. Anheuser-Busch Co., No. CGC-15-544985 (Cal. Super. Ct.):
Putative class action alleging violations of California’s UCL and Section
17533.7 of the Business and Professions Code based on claims that
Defendant states its Busch beer is a “Product of the U.S.A.,” when the
beer is brewed with imported hops. Complaint.
Fridlender v. Bella Four Bakery, Inc., No. MSC15-00585 (Cal. Super.
Ct.): Putative class action alleging violations of California’s UCL, FAL
and CLRA, as well as breach of express warranty, common law fraud,
negligent misrepresentation, breach of contract and unjust enrichment
based on claims that Defendant’s Nature Bakery Fig Bars are labeled as
“100% Natural” when they contain artificial or processed ingredients.
Complaint.
Environmental Research Center, Inc. v. North American Herb and Spice
Co., et al., No. RG15764471 (Cal. Super. Ct.): Complaint alleges
violations of Proposition 65 based on claims that Defendants’ spices
contain lead. Complaint.
Weisberg v. Aladdin Bakers, Inc., No. 15-503704 (Sup. Ct. Kings
County): Putative class action alleging several violations of New York’s
GBL, as well as breach of express and implied warranty and unjust
enrichment based on claims that Defendant falsely markets several of its
chip products as “ALL NATURAL” because they contain synthetic
ingredients. Complaint.
McDonough v. Snyder’s-Lance, Inc., No. 1:15-cv-1751 (E.D.N.Y.):
Putative class action alleging violations of North Carolina’s UDTPA, New
York’s GBL, as well as breach of express warranty and intentional
misrepresentation based on claims that Defendant markets and labels
some of its snack products as “All Natural” when they allegedly contain
GMOs. Complaint.
McNamee v. The Old Fashioned Kitchen, Inc., No. 1522-CC00732 (Mo.
Cir. Ct.): Putative class action alleging violations of Missouri’s
Merchandising Practices Act as well as unjust enrichment based on
claims that Defendant’s Golden brand Potato Blintzes are labeled as “All
Natural” when they contain sodium acid pyrophosphate. Complaint.
Lucas v. Sticky Fingers Bakeries, No. 1522-CC00728 (Mo. Cir. Ct.):
Putative class action alleging violations of Missouri’s Merchandising
Practices Act as well as unjust enrichment based on claims that
Defendant’s Gluten Free Scones Quick and Easy Mix are labeled as “All
Natural” when they contain sodium acid pyrophosphate. Complaint.

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