On June 17, 2020, the Ninth Circuit Court of Appeals issued a published opinion affirming the dismissal of a consumer class action seeking $32,000,000 against Venable client Premier Nutrition Corporation. The Court held that federal equitable principles must apply to class actions pending in federal court, even where state law rules the underlying causes of action. See Sonner v. Premier Nutrition Corp., No. 18-15890, 2020 WL 3263043 (9th Cir. June 17, 2020).

Plaintiff-Appellant Kathleen Sonner sued Premier on behalf of a class of California consumers claiming that Premier’s product, Joint Juice, did not provide its advertised joint health benefits. Sonner sought damages, restitution, and injunctive relief under the Consumer Legal Remedies Act (CLRA), as well as restitution and injunctive relief under California’s Unfair Competition Law (UCL).

Continue Reading Ninth Circuit Blocks Class Plaintiffs’ Efforts to End Run Jury Trial

sunshineThe coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California.

In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”

Continue Reading Springtime for Food Marketers? Two Big Wins in California in Recent Days

orange splashWhen courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc.

Last week, however, the Ninth Circuit Court of Appeals, which had previously opted to wait for FDA guidance with respect to evaporated cane juice, decided there was no need to wait for FDA to provide further guidance on “natural” claims in Brazil vs. Dole. In 2013, the lower court had granted in part, and denied in part, Dole’s motion to dismiss or strike the first amended complaint. (More about the significance of the 2013 date below.) The Ninth Circuit found that a decision not to stay or dismiss the case under the doctrine of primary jurisdiction was not an abuse of discretion.

Continue Reading Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification.

In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act (TCPA) by sending him unsolicited advertisements by text message.  Campbell-Ewald was contracted by the United States Navy to orchestrate a recruiting campaign, which included text message marketing to potential recruits who had “opted in” to receiving marketing solicitations.  Gomez, who had not “opted in,” received at least one such text message.  Relying on the statutory damages available under the TCPA, Gomez pursued damages and injunctive relief on his own behalf and as part of a class action.

Continue Reading Court Rules Settlement Offers Can’t Kill Class Actions

The debate over the use of trans fats has been ongoing for years.  Despite claims that trans fats are unhealthy, the Food and Drug Administration historically considered them safe for use in food.  Many of our favorite foods contain the ingredient, including Popeyes fried chicken and Betty Crocker frosting and cake mix.

On June 16, 2015, FDA banned the use of partially hydrogenated oils (“PHOs”), the primary source of artificial trans fat, unless and until a company gets food additive approval from FDA for use of the ingredient.  FDA’s final determination found that PHOs are no longer generally recognized as safe (“GRAS”) because there is no longer a consensus among experts that PHOs are safe for use in food.  The ban only applies to artificial trans fats, not naturally occurring trans fats.  Food manufacturers and distributors have until June 18, 2018 to make sure they remove trans fat from their foods.

Continue Reading FDA Gives Food Industry Three Years to Cut Out Trans Fat

Another consumer class action over allegedly false and misleading “natural” claims survived a motion to dismiss in the Southern District of New York on May 15, 2014.  At issue in Ault v. J.M. Smucker Co. is whether “All Natural” claims made on labels of Smucker’s Crisco branded vegetable oils are false and misleading.  The plaintiffs allege in their complaint that the claim is misleading for two reasons: 1) the oils are derived from genetically modified vegetables which are not natural, and 2) the oils are so heavily processed that they bear no chemical resemblance to the ingredients from which they are derived.   

In response to the complaint, Smucker’s filed a motion to dismiss on the grounds that FDA policies and regulations preempt the plaintiffs’ state false advertising claims, and argued that the Court should decline to enter that “All Natural” debate and defer to the FDA as it has primary jurisdiction.  On May 15, 2014, Judge Crotty of the Southern District of New York denied the motion to dismiss.
Continue Reading Absence of Federal Standard Greases Way for Another “Natural” Class Action