water

Water: two parts hydrogen, one part oxygen. It seems simple enough, but for companies selling bottled water, liability lurks below the surface. According to a recent lawsuit, consumers care not only about what is in their water; they care about from where it comes from. Perhaps more importantly, according to the plaintiffs—so do regulators.

In Patane v. Nestle Waters N. Am. Inc., 314 F.Supp.3d 375 (D.Conn. 2018), Nestle faces allegations that it made millions of dollars by fraudulently labeling Poland Spring Water. The complaint, filed by plaintiffs from nine different states, claims that Nestle bilked consumers out of millions by selling tap water under the guise of spring water.
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In the Wake of Monsanto, All Eyes are on the Cheerios Glyphosate Case

Doss v. General Mills, No. 18-cv-61924 (S.D. Fla Aug.17, 2018)

The Skinny:  Last fall, a jury in California awarded $289 million to a plaintiff who alleged he contracted cancer from the glyphosate in Monsanto’s Roundup weed killer.  Now that a bellwether trail has concluded with a substantial plaintiff win, attention shifts to the Southern District of Florida where a case is proceeding against General Mills alleging that Cheerios contains levels of the same chemical. Also see Paracha v. General Mills Inc., No. 2:18-cv-07659 for a similar case filed in a different jurisdiction.
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Malic Acid: Newest Culprit in “Natural” Marketing Case Trend

cranberry juiceHilsley v. Ocean Spray Cranberries, Inc., No. 17-cv-2335, 2018 WL 6245894 (S.D. Cal. Nov. 29, 2018)

The Skinny: Malic acid is a common food ingredient used for flavor and pH control. Because of its prevalence and varying uses, a flurry of class action cases were recently filed against companies that use malic acid while simultaneously claiming “no artificial flavors” exist in their product. In Hilsley, a California federal judge granted certification against Ocean Spray.
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LabelThe saying goes, knowledge equals power. For plaintiffs asserting claims for injunctive relief on behalf of putative classes, however, the Mott’s Apple Juice case demonstrates just the opposite.

The Northern District of California’s recent order denying reconsideration of its summary judgment ruling in Rahman v. Mott’s LLP, 2018 WL 4585024 (N.D. Cal. Sept. 25, 2018) holds that a plaintiff cannot “plausibly claim” that he will suffer future harm if he is now “fully aware” of what the allegedly deceptive statement means.
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Vita Coco

On September 26, 2018, the Honorable Judge Robert N. Scola entered an Order denying class certification in a consumer deceptive advertising case. Plaintiffs claimed that the use of the phrase “born in brazil” on containers of Vita Coco, the leading brand of coconut water, caused them to believe that Vita Coco was manufactured in or sourced exclusively from Brazil, when it was not. Plaintiffs sought to certify injunctive classes under FRCP Rule 23(b)(2) and damages classes under Rule 23(b)(3).

The Court denied class certification for two primary reasons. First, the Court found that the named plaintiffs lacked standing to represent the injunctive classes where there was no real and immediate threat of future injury. The Court observed that any alleged future harm suffered by the plaintiffs was self-inflicted:
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almond milkAt a recent Politico event, Federal Drug Administration (FDA) Commissioner Scott Gottlieb signaled the agency’s shift to a new era of more stringent enforcement in the dairy business. Gottlieb did so with an amusing quote: “An almond doesn’t lactate, I will confess.”

Gottlieb’s curious combination of words was referring to the federal regulation that defines what may be legally marketed as “milk.” Section 131.110 of the Code of Federal Regulations states that “milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” Gottlieb’s comment reflected that since almonds do not lactate, the beverage currently known by consumers as “almond milk” does not strictly fall under the definition of milk.
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Authored by Lori Lustrin and Anthony Sirven.

PomFood and beverage manufacturers are well accustomed to heeding counsel’s advice of dotting their “I’s” and crossing their “T’s” to ensure their product labels comply with applicable governmental regulations. But since the United States Supreme Court’s pronouncement in Pom Wonderful LLC v. Coca-Cola Co., food and beverage makers now face a heightened level of scrutiny from what may be their most formidable challengers—direct competitors.

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YogurtPodpeskar v. Dannon Co., Inc., 16-cv-8478 (KBF) (S.D.N.Y., Dec. 3, 2017)

The Southern District of New York joins the list of federal courts that have recently rejected potential class action suits brought against restaurant and food manufacturers for the alleged false advertisement of their food products as “GMO-free.
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Veggie BurgerYou clearly know the difference between the meat and vegetables on your plate, right? As society has redefined its views on meat and protein intake, however, you may not be so sure.

Plant based proteins have quickly become the food industry’s most popular new addition. With protein now being processed from non-animal sources, the word “meat” is now at the center of a hotly contested legal debate.  Given the ripeness for litigation, the U.S. Department of Agriculture
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MenuCertain restaurant owners have less than two months to comply with a new Food and Drug Administration (“FDA”) regulation.  On December 1, 2014, the Food and Drug Administration (“FDA”) published a final rule requiring that qualifying establishments — such as restaurants, grocery stores, and  coffee shops  — list on their menus the calories of regularly sold food items.  The deadline for qualifying restaurants to comply with this rule is now May 7, 2018.  
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