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Well, not really.  But what else were we going to call a post about class action litigation over whether honey can properly be called honey?  That’s right, since last September there have been five decisions rendered in five separate class actions over whether labeling honey as honey is fraudulent, misleading, and misbranded.  Brod v. Sioux Honey Ass’n Cooperative, 2012 U.S. Dist LEXIS 129391 (N.D. Cal. Sept. 11, 2012); Ross v. Sioux Honey Ass’n Cooperative, 2013 U.S. Dist. LEXIS 6181 (N.D. Cal. Jan. 14, 2013); Overton v. CVS Caremark Corp., 2012 U.S. Dist. LEXIS 185697 (C.D. Cal. Dec. 11, 2012); Regan v. Sioux Honey Ass’n Cooperative, 2013 U.S. Dist. LEXIS 13166 (E.D. Wis. Jan. 31, 2013); and Guerrero v. Target Corp., 2012 U.S. Dist. LEXIS 125055 (S.D. Fla. Sept. 4, 2012).  And, we believe there are other class actions with the same allegations pending (we know others have been filed and that MDL status was denied).

But before these class actions, back in 2007, there was the ultimate honey lawsuit — Bees v. Humans.  From the mind of Jerry Seinfeld we got The Bee Movie.  In it, two bees voiced by Seinfeld and Matthew Broderick sue the humans for stealing their honey and profiting from it illegally.  Frankly, we think that lawsuit has more merit than these real ones.  At least the bees suffered a real injury – they did all the work, people got all the benefit.  There are some pretty funny courtroom scenes in the movie.  John Goodman plays the over-the-top dramatic lawyer defending the humans.  The bees berate singer Sting for stealing his moniker from the bee community and cross-examine Ray Liotta about his Ray Liotta Private Select Honey.  If Ray Liotta really did market honey, you can bet today’s honey plaintiffs would be checking his product for pollen (Ray Liotta scene is also pretty funny, but couldn’t find any clips).

That’s what these class actions are all about – whether honey can still be called honey if the pollen has been removed.  Some plaintiffs seem to contend that pollen has certain health benefits and that had they been aware that the honey they purchased didn’t contain pollen, they wouldn’t have bought it.  Putting aside the seeming absurdity of the lawsuits, these plaintiffs are bringing mislabeling claims involving the FDA and FDCA, and since we are talking about food, the Nutrition Labeling and Education Act (“NLEA”).  So, at the heart, these are preemption cases and preemption cases get our attention every time.  The fact that five decisions came down so relatively close together also piqued our curiosity and so we decided to take a closer look. We are happy to report, that just like dentists who recommend Trident gum, 4 out of 5 courts got it right.Continue Reading A Honey of A Litigation

Photo of John Sullivan
Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), was in fact wonderful.  We discussed it in detail here.  It addressed so many things that make preemption right.  It seems particularly wonderful for motions to dismiss state-law food labeling claims.  There’s apparently one problem, though.  Pom didn’t make a preemption

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Photo of John Sullivan

The outdoor furniture is in the garage.  So are the potted plants.  The basketball net, with its 10-foot metal pole and base full of sand, has been pulled down and laid on its side.  Dozens of candles are at the ready, and the bathtubs are filled with water.  The power goes out in this town when it drizzles, and this won’t be drizzle.  So it’s only a matter of time before we’ll need those candles.  Frankenstorm is coming.
So we hope you’ll forgive us for a short post today.  It’s kind of appropriate, though, because the court’s opinion n Lateef v. Pharmavite LLC, 2012 U.S. Dist. LEXIS 152528 (N.D. Ill. Oct. 24, 2012), was very short.  It didn’t take long for the court to apply preemption.
The plaintiff was an adherent to religious dietary restrictions that prohibited her from eating pork and pork byproducts.  She bought a bottle of Vitamin D tablets whose label mentioned no animal byproducts.  The tablets, however, did contain small amounts of gelatin, which is made from byproducts of animals, including pig.  So the plaintiff sued, filing a class action complaint asserting breach of warranty, unjust enrichment and violations of Illinois’s Consumer Fraud and Deceptive Business Practices Fraud Act.
So where does the preemption come from?  Well, the FDCA was amended in 1990 by the Nutritional Labeling and Education Act (NLEA), which does just was it says.  It regulates nutrition content claims on food labels.  And it says that “incidental additives,” like the gelatin used in the Vitamin D tablets, which are present in small amounts and provide no technical or functional effect, are exempted from labeling.  Id. at *7-8.Continue Reading Food Preemption, and Frankenstorm’s Coming

Photo of John Sullivan
“Read!  Read!  Read!”  That’s what our late-great civil procedure professor, Bob Carter, would always shout as he led the class through another close reading of the language in a key opinion.  He was a stickler for reading the whole thing.  (He was funny too, like when he told us the story of a panhandler who failed

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Photo of John Sullivan
In old movies, everybody seemed to use coffee to sober-up a friend who’d had too much to drink.  (The only other option, if our movie-memory is correct, was a bucket of ice water.)  Do you remember “Dead Men Don’t Wear Plaid” – an old movie about older movies?  Steve Martin played a Sam-Spade-like detective who

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            Sometimes a decision bounces around a bit before it lands on our plates.  But when we finally spot it and read it, we realize it might be worth a quick chew.  It may be a tasty little tidbit like a particularly good Twiqbal decision outside the drug/device arena.  A savory morsel on a regulatory

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Photo of Michelle Yeary
Tomorrow is Thanksgiving – the biggest American “eating” day of the year.  So we thought we’d share a few fun facts.  Did you know the average person on Thanksgiving eats around 4,500 calories?  (By the way, that’s more than double the daily amount a person should eat).  For instance, on average one cup of mashed

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Today the Eleventh Circuit vacated the certification of a Florida consumer protection (FDUTPA) class action in Fitzpatrick v. General Mills, Inc., ___ F.3d ___, No. 10-11064, slip op. (11th Cir. March 25, 2011).  The complaint alleged false statements about the health benefits of Yoplait yogurt.  The trial court has certified a class consisting of…

Photo of Stephen McConnell

We had Pitt and Louisville in our Final Four. Plus our favorite hoops coach, Bruce Pearl, was just axed. No man ever looked finer in an orange sport coat. All of Rocky-top, and fans of wacky YouTube videos, will miss him desperately. Put plainly, we are broken-hearted and broken-bracketed. And paralyzed. Therefore, no Monday post.
At moments like this, we think of our favorite character from Entourage, Bob Ryan. He is a has-been — or maybe, never-was — agent whose stilted pitch is always the same: “If I had x, do you think that’s something you’d be interested in?” You know, like “If I had a script and songbook for a musical version of Franz Kafka’s Metamorphosis — Roach! – is that something you might be interested in?” Martin Landau plays Bob Ryan like the Willy Loman to Jeremy Piven’s profane Super-Agent Ari. Bob Ryan is way more likeable than Bela Lugosi in the film Ed Wood, or the guy on the old Mission Impossible television show, or the creepy villain in North by Northwest — all brilliant creations of Landau’s. We can imagine Bob Ryan catching us in a down-mood today and saying, “If I had a case where a product could have a statement that was factually wrong on its label, and even falsely said it was ‘healthy,’ but the court said the plaintiff was out of luck because the FDA had approved such language, would that be something you might be interested in?” Golly, yeah. Where do we go for such enlightened jurisprudence?
Turns out it’s not a place. It’s another area of litigation: food, glorious food. In Yumul v. Smart Balance, Inc., CV 10-00927 (C.D. Cal. March 14, 2011), the plaintiff filed a putative class action alleging violations of California consumer fraud laws because the margarine product in question had a few iffy statements on its label. For example, the label said “cholesterol free” while also disclosing that it contained partially hydrogenated soybean oil and that each serving contained 1.5g of trans fat. The label also contained the word “healthy.” The plaintiff said the label lied because the margarine raised LDL (“L” for lousy) cholesterol, and there is nothing “healthy” about trans fat.Continue Reading Like Butter

Apologies for the groan-worthy pun in the title, but what did you expect in a case involving sugar beets? Sugar beets, in case you don’t know (we didn’t), are responsible for 44% of the domestic refined sugar supply. In the past few years, Monsanto and others have developed genetically engineered sugar beets that can tolerate…

Drug & Device Resources

Bexis’ Book

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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