On June 8, 2020, Judge Katherine Polk Failla in the Southern District of New York dismissed a putative class action against TGI Friday’s (“Friday’s”) for alleged deceptive advertising.

The Plaintiff claimed the labeling of Friday’s “Sour Cream & Onion Potato Skins” chips is misleading because it led her to believe the snack contained real potato skins and was thus a healthier option than most chips. According to the Plaintiff, she—and the members of the putative class she sought to represent—would not have purchased the purportedly falsely labeled chips if she had known they did not contain real potato skins.


Continue Reading Putative Class Action Against TGI Friday’s Dismissed

On May 20, 2020, the Eleventh Circuit affirmed the dismissal of a proposed class action against General Mills for its alleged failure to disclose the presence of a harmful chemical in its Cheerios cereal. The Eleventh Circuit agreed with District Judge Robert N. Scola Jr.’s finding that the Plaintiff failed to allege an actual injury sufficient to confer Article III standing.[1]

The Plaintiff alleged General Mills failed to disclose that its Cheerios and Honey Nut Cheerios contain trace amounts of glyphosate, the herbicide that was the subject of the well-publicized class actions involving Monsanto Roundup. [2] The putative class representative sought to establish both a nationwide class and a Florida class of purchasers of Cheerios or Honey Nut Cheerios during the applicable class period.[3] In addition to claims of breach of warranty, unjust enrichment, violations of Florida’s deceptive practices act (FDUPTA), and restitution for revenues General Mills earned by purportedly misleading consumers, the Complaint also sought an injunction requiring General Mills to change the company’s allegedly deceptive practices.[4]


Continue Reading Big Win For General Mills as Eleventh Circuit Affirms Dismissal of Contaminated Cheerios Class Action

Last week U.S. District Judge Phyllis J. Hamilton granted Ghirardelli’s Motion to Dismiss a proposed class action involving the chocolatier’s packaging of its white baking chips.

Filing their case in September of last year in California state court, the class plaintiffs alleged that the products were deceptively labeled because the use of the term “white” insinuated that the chips contained white chocolate when it, in fact, did not. Ghirardelli removed the case to federal court and moved to dismiss, arguing that the mere use of the word ‘white’ says nothing about whether the product is chocolate,” but rather simply describes the color of the chips.[1]


Continue Reading Putative Class Action Dismissed Over Ghirardelli White Chips

On March 19, 2020, Magistrate Judge Goodman recommended certifying a Florida class of purchasers of Prevagen, a memory-enhancement product developed by Quincy Bioscience, LLC.[1]  Plaintiffs’ complaint asserts that Quincy violated Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) by representing to consumers that Prevagen can improve memory function when that “cannot possibly be true as a matter of body chemistry.”

While the Plaintiffs in this case had not yet conducted discovery, they were able to rely on a robust record developed in a similar Prevagen class-action lawsuit against Quincy in California, where the class had been certified and gone to trial.  Quincy is also the current subject of government enforcement actions by the Federal Trade Commission and the New York Attorney General’s Office, and a defendant in four other Prevagen-related class-action lawsuits.
Continue Reading Class Action Ascertainability in the Eleventh Circuit: What Makes the Cut?

The rapid spread of COVID-19 (also commonly referred to as “novel coronavirus”) has caused nations and organizations across the world to take emergency action in the interest of public health. Most companies are issuing statements advocating for consistent hygiene (handwashing and minimal face touching) aimed at containing the spread of the virus. Other companies are taking more aggressive action by instituting work from home policies and even travel bans.

The food industry is particularly susceptible to experiencing a duel impact from the global outbreak, both in terms of both domestic sales and supply chain disruptions. Many food manufacturers have foreign production facilities in China, Italy, and other locations where coronavirus has stalled the workforce, and in turn, the economies. And, because a timeline on a meaningful dissipation of the outbreak is so uncertain, manufacturers, distributors, and retailers must prepare to engage in significant deviations in their current approach, by considering diversions to alternative sourcing locations, and an increased focus on inventory management. For example, not surprisingly, grocery stores have seen a surge in demand for hand sanitizers, soaps, and other disinfectants, leaving many retails with empty shelves. Indeed, supply of these products is so scarce that recipes for “DIY” hand cleaners are being circulated by news and social media outlets.  Retailers that are able to meet that demand will benefit from increased foot traffic and overall sales.


Continue Reading A Recipe for Disaster: The Impact of COVID-19 on Food Safety and the Food Industry

This month, the U.S. Department of Justice (DOJ) opened a criminal investigation into collusive behavior among some of the largest producers of Atlantic salmon.  This inquiry follows the DOJ’s June announcement of its separate investigation into the chicken industry.

Atlantic salmon producers implicated by the investigation include Grieg SeafoodSalMar, Leroy Seafood Group, and Mowi.  The launch of the U.S. inquiry comes on the heels of the European Commission’s (EC) announcement of an investigation into the Atlantic salmon industry following a series of raids at the facilities of several prominent producers. The EC stated it had “concerns that the inspected companies may have violated E.U. antitrust rules that prohibit cartels and restrictive business practices.”


Continue Reading Atlantic Salmon Producers Netted by DOJ

If you are a typical shopper, the last thing on your mind at the checkout counter is your printed credit card receipt.  As you juggle your grocery store bags, you might absentmindedly fold the receipt into your wallet, or crumble it up and drop it into the depths of your bag.

However, for more than a decade, printed credit card receipts have been the subject of considerable litigation all over the country.  The Fair and Accurate Credit Transactions Act (“FACTA”), enacted in 2003, prohibits retailers from printing “more than the last 5 digits of the credit card number or the expiration date” on a consumer’s receipt.  The potential penalty for a FACTA violation is harsh: the statute awards up to $1,000 damages per violation when the conduct is willful, making it an area ripe for class action lawsuits—with restaurants, grocery stores, and other food retailers being primary targets.


Continue Reading Will the Eleventh Circuit Fall in Line with its Sister Circuits in Interpreting Spokeo’s Standing Requirements in FACTA Cases?

Eighty-six years after the repeal of Prohibition, Bacardi USA and Winn-Dixie are facing a putative class action predicated on Florida Statute Section 572.455, a 150 year-old remnant of the temperance movement.  In Uri Marrache v. Bacardi USA, Inc., et al., Case No. 2019-023668-CA-01 (Miami-Dade Cir. Ct. Aug. 9, 2019), Plaintiff alleges that Bombay Sapphire gin, a Bacardi product sold at Winn-Dixie, is “adulterated” with grains of paradise in violation of Section 572.455 and Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).

Grains of paradise are the seeds of an African plant in the ginger family, known as Aframomum melegueta. They are ground and used as a spice akin to cardamom, with a citrusy black pepper taste.  Florida Statute Section 562.455 states that, “[w]hoever adulterates for the purpose of sale, any liquor, used or intended for drink with . . . grains of paradise. . . or any other substance which is poisonous or injurious to health, and whoever knowingly sells any liquor so adulterated shall be guilty of a felony of the third degree[.]”


Continue Reading Trouble in Paradise for Bacardi and Winn-Dixie Over New FDUTPA Class Action

Eager to curb foodborne-illness outbreaks, retail giants like Walmart and Albertsons are turning to blockchain technology [1] to track exactly where their foods are coming from. Blockchain, as compared to the eye-straining, paper-heavy tracking systems before it, allows retailers to trace the supply-chain history for a single food item within seconds.

For example, in a test case using IBM’s blockchain technology, Walmart traced the supply chain for two off-the-shelf mangoes randomly taken from one of its stores. Using conventional source-checking methods, it took them 7 days to do so. Through blockchain, however, they were able to track the entire supply chain in 2.2 seconds!  As a former Walmart executive put it, blockchain “allows us to see the whole chain in seconds! We [could] take a jar of baby food and see where it was manufactured and trace back all the ingredients to the farms!” Before blockchain, that simply would not have been feasible.


Continue Reading Blockchain Will Likely Make a Meaningful Impact on “Big Food” Litigation

The active ingredient in popular weed killers, glyphosate, has gotten bad press lately.  Thousands of plaintiffs have alleged that exposure to it caused their cancers.  Jurors have responded by invoking punitive damages and awarding billion dollar verdicts.  These headline-grabbing results have been subsequently reduced by court on legal grounds.

Some advocacy groups are claiming that the chemical’s presence extends beyond weed killers.   For example, the Environmental Working Group recently conducted a study that purports to show traces of the chemical present in many Cheerios and Quaker brand products.  To no one’s surprise, civil lawsuits followed.


Continue Reading Speculative Claims Sink Cheerios Glyphosate Suit