Food

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Before there was reality television, there was a show about nothing.  In one memorable episode of that show, the characters become enamored with purportedly non-fat frozen yogurt from a shop in which one character has invested.

When the characters notice that they have gained weight after regularly
consuming the frozen yogurt, the character who has invested takes some of the frozen yogurt to be tested for the presence of fat.  After madcap hijinks ensue, the yogurt is determined to contain fat and the Mayor of New York, who also favored the frozen yogurt and believes he has developed high cholesterol, vows to clamp down on false advertising. That was “Seinfeld” and the investor, Kramer, lost his money as millions laughed.

In Burke v. Weight Watchers Int’l, Inc., No. 2:12-06742 (WJM), 2013 U.S. Dist. LEXIS 149249 (D.N.J. Oct. 17, 2013), the plaintiff used to like defendant’s diet ice cream bars—at least some of them—until she learned that each one might have 28 to 50 more calories than was listed on the package.  So, she sued as a putative class representative for all consumers of all of defendant’s diet ice cream ban under the New Jersey Consumer Fraud Act, express warranty, implied warranty, and unjust enrichment.  She will get at least one more chance to plead non-preempted claims, perhaps by shifting her focus to allegations based on how diet ice cream bars taste compared to real ice cream.  The Häagen Dazs dulce split Dazzler surely trounces the defendant’s Dark Chocolate Dulcé de Leché Ice Cream Bar (one of the ones plaintiff sued over but did not buy)–no matter how many hundreds of additional calories the former actually has, it is worth it for those not vulnerable to a diabetic coma.
Continue Reading Do We All Scream For Diet Ice Cream?

Photo of Michelle Yeary

We hope at least some of our readers will recall the classic ad campaign where a tub of Parkay margarine would try to trick celebrities into thinking it was butter (this one stars Deacon Jones).  Clever and catchy?  Yes. Misleading?  No.  Now, you may be saying:  well, back then there were only two choices –…

Photo of Michelle Yeary

It’s the day after Labor Day.  For some it is the day they mourn the end of summer.  For some, it is the start of the countdown to the holiday season (58 days till Halloween, 86 days till Thanksgiving, 113 days till Christmas).  But for the vast majority, the first week of September means back to school.  Whether it is nervous kindergarteners heading out for the first time, surly teens who have to be dragged out of bed kicking and screaming, or college freshman quickly realizing why no upper classmen take Friday morning classes – it is all part of the back to school ritual.

Which got us thinking about some of the greatest school-based movies.  There are way too many to name, so apologies from the start if we miss your favorite.  But anyone’s short list for high school movies has to include The Breakfast Club, Fast Times at Ridgemont High, Ferris Buehler’s Day Off, Grease, and Dazed and Confused.  Graduating to college you have Goodwill Hunting, The Social Network, The Paper Chase, Higher Learning, Old School, and Back to School

And, of course, the single best movie about college of all time – National Lampoon’s Animal House. “You guys playing cards?”  “Guess what I am now.”  “Was it over when the Germans bombed Pearl Harbor?” “Toga, Toga.”  And who could forget:  “Is that a pledge pin?  On your uniform?”  Of course, true classics like Animal House can’t be replicated, but they can be spoofed.Continue Reading Monster Beverage Launches Preemptive Strike

Photo of Michelle Yeary

Who doesn’t love a good cup of tea?  This blogger takes hers iced, unsweetened with lemon in the summer and chai with a splash of milk in the winter.  Who else is on the list of tea enthusiasts?  The media has reported on President Obama’s preference for morning tea over coffee.   C.S. Lewis said:  “You can never get a cup of tea large enough or a book long enough to suit me.”  We are going to assume Eleanor Roosevelt was a tea drinker based on this quote:  “A woman is like a tea bag – you can’t tell how strong she is until you put her in hot water.”  Singers have been toting the benefits of tea on vocal chords for years (green tea is supposedly the favorite for many vocalists).  Arthur Dent in the Hitchhiker’s Guide to the Galaxy is forever in quest of the perfect cup of tea. What about Captain Jean Luc Picard (“Computer, tea, Earl Gray, hot”) or Dr. Sheldon Cooper of The Big Bang Theory (“There isn’t enough chamomile tea in the world to quell the rage in my heart.”).  Who doesn’t want a spot o f tea while watching Downton Abbey?  And, as if to solidify the current popular trend for tea, Donald Trump even started his own line of teas (“You won’t find a more lavish tea drinking experience in the world than with my exclusive collection of premium blends.”).

Sure, the increased popularity of tea may have something to do with its increased presence in pop culture, but that also might be the effect not the cause.  The cause may be more directly linked to tea’s reported health benefits.  And, as we know, with reported health benefits comes litigation.  Particularly litigation in California.  So, it shouldn’t surprise you to learn that there is litigation pending in the Northern District of California over the nutrient content and health claims of certain teas – Clancy v. The Bromley Tea Company, 2013 U.S. Dist. LEXIS 112722 (N.D. Cal. Aug. 9, 2013).   It should be equally non-shocking to learn that the Clancy plaintiffs have filed a putative class action alleging, among other things, violations of California’s Sherman Law (which incorporates the requirements of the FDCA) and California’s Unfair Competition Law (“UCL”).  Frankly, on the issue of primary importance to us – preemption — there isn’t a whole lot to distinguish this case from some other recent California food labelling cases about which we’ve posted.Continue Reading A Spot of Tea in California

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San Francisco has always been a great restaurant town, and if anything, the food and dining options have only gotten better over the last 20 years.  Come to think of it, the food and dining scene has improved most everywhere, to the point that you can find a great meal in all parts across the country.  We’ve had the best shrimp and catfish we’ve ever eaten while taking depositions in the South, and, while recently vacationing in a New England town where we spent part of our youth, we could not help but notice the number of really good eateries that were not there before.  (Although one beloved greasy spoon had converted to a Starbucks, so not every change was an improvement.)  Our collective obsession with food is seen further in the proliferation of food-related television programming, including a Food Network, which we will unabashedly admit to watching and enjoying somewhat regularly.

We are waxing on about San Francisco and food for two reasons.  First, this is your blogger’s inaugural blog post, and my law practice is based in the City by the Bay.  I have long admired the Drug and Device Law Blog and especially its contributors, who for many years have carried a banner for those of us on the “right side of the v” with intelligence, wit, and above all relentlessness.  Day in and day out.  Although I am cut from much the same cloth as my co-bloggers, my voice originates from a point west of Princeton, Philadelphia and Washington, D.C., and I am thrilled to be joining the effort.

Second, the Northern District of California has become somewhat a center for food-related litigation. Some refer to it as the “Food Court,” although we believe that label is largely promoted by those interested in seeing food-related litigation gain legitimacy and expand.  We have written many times about food litigation, including here and here, because even though we are the Drug and Device Law Blog, the “F” in FDCA stands for Food, and we take lessons from food on such topics as preemption, primary jurisdiction, and claims for consumer remedies.

This leads to a recent order from the Northern District of California where the court dismissed food-related claims in ways that we like, but did not embrace one of our favorite grounds for dismissal – federal preemption.  In Kane v. Chobani, Inc., No. 12-cv-02425, 2013 U.S. Dist. LEXIS 98752 (N.D. Cal. July 12, 2013), the plaintiffs alleged that the defendant had mislabeled its “Greek” yogurt products in three ways – by referring to the yogurt’s sweetener as “evaporated cane juice” when it essentially is just sugar; by falsely claiming “no sugar added” on its website; and by falsely stating that the products were “all natural.”  Id. at *3-*6.  Lawsuits of these kinds, and particularly those focused on whether products are “all natural,” unfortunately have become  familiar, which begs the question in our minds of how much consumers (1) read alleged representations like these and (2) attribute meaning to them in making their purchasing decisions.  Maybe they do, maybe they don’t.  We can’t tell without asking them.Continue Reading Is Kane Sugar Parallel to Cane Sugar?

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Last year, we blogged about the District of New Jersey’s dismissal of a putative class action involving the margarine substitute, Benecol Spread.  See here.  In celebrating the win, we focused on the defense decision to lead with standing – a less often used argument than heavy-hitters like preemption or Twiqbal.  A bench player,…

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It has been about two months since we first posted about the swell of class action litigation over honey.  Your homework at that time was to watch The Bee Movie while we watched the honey litigation.  We did our part.  Which is how we found Perea v. Walgreen Co., 2013 U.S. Dist. LEXIS 53404…

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If you are a regular reader of this blog, and we hope you are, you know that we have been paying close attention to when the FDA will issue its guidance on internet and social media promotion of drugs and devices.  You can find our latest update here.  As we’ve said before, we, and more importantly our clients, want and need word from the FDA as to what it will consider proper and what it will not.  We know the rules for print and broadcast promotion, but those media continue to lose readers/viewers to the internet, and in particular to social media.  And, in that marketplace – there remain too many unanswered questions for our clients to have any comfort in using the internet as a means of communicating information about their products.

The single biggest question for which we don’t have an answer is what actually constitutes promotion.  Is it providing a link to a scientific article?  Is it “liking” a Facebook post?  Or “re-tweeting” someone else’s comments?  We just don’t know.  So, while we sit and wait for the FDA to decide the answer, we thought we’d bring you a recent decision from a food labeling case that grappled with the internet issue.  The rules about food labeling are different from those for drugs and devices, but in the absence of formal FDA guidance, it behooves us to be aware of what courts are saying about our cousins in the food industry.

We doubt you’ll be surprised to learn that the issue arose in the context of a putative class action brought in California alleging violations of California’s Unfair Competition Law’s (“UCL”), False Advertising Law (“FAL”), and Consumers Legal Remedies Act (“CLRA”); as well as unjust enrichment and breach of warranty.  Wilson v. Frito-Lay North America, Inc., 2013 U.S. Dist. LEXIS 47126, at *4-5 (N.D. Cal. Apr. 1, 2013).  Perhaps you’ll be slightly more surprised, as we were, that anyone was claiming they were misled about the nutritional content and value of such products as “Lay’s Classic Potato Chips, Lay’s Honey Barbeque Potato Chips, Lay’s Kettle Cooked Mesquite BBQ Potato Chips, Cheetos Puffs, and Fritos Original Corn Chips.”  Id. at *2.  Can anyone claim — with a straight face – that they both purchased these products and that “they care about the nutritional content of food and seek to maintain a healthy diet”?  This is the food of juvenile ignorance, youthful metabolism, and the occasional late night, perhaps alcohol-influenced, binge.  It’s called junk food for a reason!  But, back to the case.

There is a lot going on this decision, including a finding that several of plaintiffs’ claims are not preempted because the requirements they seek to impose mirror those imposed by the FDA – in drug and device parlance, they are allowable parallel violation claims.  Not a result we’d champion and since we blogged about a similar result last week in Brazil v. Dole Food Company, 2013 WL 1209955 (C.D. Cal. Mar. 25, 2013), we won’t re-hash the issue here.  See Wilson, 2013 U.S. Dist. LEXIS 47126 at *19-29.  There is also an interesting discussion of the deference to be afforded to an agency’s informal, non-binding interpretation of its own regulations.  In this case, the court found that because the regulation in question (on MSG labeling) was subject to different possible interpretations, it would give deference to the FDA’s statement on its website which “appears to be its own interpretation of an ambiguous regulatory scheme.”  Id. at *26-29.  Again, not a ground breaking ruling, but noteworthy.Continue Reading Website Not Considered Labeling in Food Case

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It seems that there’s a reason to blog about Pom Wonderful or a similar case almost weekly, and the cases always seem to come from California.  So now we have Brazil v. Dole Food Company, 2013 WL 1209955 (C.D. Cal. Mar. 25, 2013).  This one is a class action (Pom Wonderful was a business dispute) in which the plaintiff claims that certain Dole food products were improperly marked as “natural,” “fresh,” “sugar free,” “low calorie,” or the like.  Plaintiff’s claims are the usual suspects: violations of California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) and Consumer Legal Remedies Act (“CLRA”), violations of the Song-Beverly Consumer Warranty Act and Magnuson-Moss Warranty Act, and an unjust enrichment claim.

Now, the outcome was generally good.  The court dismissed all of plaintiff’s claims.  But some bad came with it.  The dismissals of plaintiff’s UCL, FAL and CLRA claims were without prejudice because those particular dismissals were based on plaintiff’s failure to satisfy FRCP 9(b)’s heightened pleading standards for fraud.  The court rejected the Defendant’s argument that those claims should be dismissed “with prejudice” as preempted by the food labeling portions of the FDCA.  So the plaintiff has the opportunity to replead them.

As background, you may recall that the 9th Circuit in Pom Wonderful, upheld the dismissal of Lanham Act claims about food labeling because they were barred by the FDCA, which can be enforced only by the United States, not private plaintiffs.  And last week on remand, the Pom Wonderful district court dismissed plaintiff’s remaining state-law claims as preempted by the FDCA.  So why wouldn’t the Brazil court dismiss plaintiff’s food claims as preempted?Continue Reading More Food Litigation and, Yet Again, More Pom Wonderful

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Pom Wonderful continues to be so.  Last year it produced a terrific 9th Circuit opinion reinforcing that only the United States, not private plaintiffs, can enforce the FDCA and FDA regulations.  See Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012).  And so the FDCA and its regulations barred plaintiff’s Lanham…

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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