FDA Announces Increased Inspections and Enforcement Actions, Additional Guidance to Reduce Toxic Elements in Food for Babies and Young Children

On March 5, 2021, FDA issued a public statement announcing regulatory actions to reduce toxic elements — with a particular focus on arsenic, lead, cadmium and mercury — in food for babies and young children. FDA cited the risk heavy metals pose to infant and young children’s neurological development. The Agency indicated that it would take the following actions:

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“Vanilla” Milk Claims Continue to Sour as Southern District of New York Dismisses Putative Class Action Complaint

As we discussed in a previous post, the Northern District of California recently dismissed a plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product.  The Southern District of New York has now similarly dismissed a putative class action complaint alleging that a “vanilla” almond milk product was labeled in a way that misled customers.

In Wynn v. Topco Associates, LLC, No. 19-cv-11104, Plaintiffs alleged that Defendant’s use of the word “vanilla” on the label of its almond milk product – “Vanilla Almost Milk” – falsely communicated to consumers that the beverage’s flavor was derived entirely from real vanilla, when in fact the product includes non-vanilla flavorings.  Plaintiffs claimed, among other things, that this violated the New York General Business Law (NYGBL).

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Northern District of California Sours Plaintiff’s Claims against “Vanilla” Soymilk Maker

The Northern District of California recently dismissed a Plaintiff’s claim that the term “vanilla” was misleading on the label of a soymilk product, but left the proverbial door open for the filing of an amended pleading.

In Clark v. Westbrae Natural, Inc., Case No. 20-cv-03221, Plaintiff alleged that Defendant’s use of the word “vanilla” on the label of its organic unsweetened soymilk misrepresented to consumers that the product’s vanilla flavor was derived exclusively from the vanilla bean plant. Gas chromatography‒mass spectrometry analyses showed that the flavor came from a non-vanilla source. Plaintiff alleged he would not have purchased the product had he realized the flavor was not derived from the vanilla bean, and asserted claims under California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act.  He argued that the product should be labeled “artificially flavored.”

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“Vanilla” Ice Cream Deceptive Labeling Case Melts on Motion to Dismiss

A federal court in New York recently granted a motion to dismiss claims that ice cream labeled “vanilla” misleads consumers into believing the product’s flavor comes exclusively from vanilla beans or extract, when in fact other natural flavors contribute to the vanilla taste. The decision may be a harbinger of what is to come in similar cases challenging the label description of vanilla and other flavors in products ranging from ice cream to soy milk to energy drinks. The decision also shows that alleged regulatory violations and product testing do not necessarily support a plausible claim of consumer deception.

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Ninth Circuit’s Ingredients List Rule Keeps Nestlé in Hot Water with Denial of Nestlé’s Statute of Limitations-Based Summary Judgment Motion

The Northern District of California recently applied the Ninth Circuit’s ingredients list rule in a putative class action decision. The Court refused to grant Nestlé USA Inc.’s summary judgment motion based on the statute of limitations in a suit involving allegations that Nestlé misleads consumers about the trans-fat content of their Coffee Mate creamer products. The Court held that a triable issue of fact remained because it was not clear when the consumer first learned about the alleged deception.

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California Consumers Can’t Escape Federal Jury Trial by Abandoning Available Damages Claims

The Ninth Circuit affirmed dismissal of a consumer fraud class action pursuing restitution under California’s Unfair Competition Law (UCL) because the plaintiff failed to show she lacked an adequate legal remedy. Sonner v. Premier Nutrition, No. 18-15890 (9th Cir. June 18, 2020). In doing so, the Ninth Circuit resolved a split in the California federal courts regarding whether plaintiffs may pursue solely equitable relief under the UCL, Consumer Legal Remedies Act (CLRA), or False Advertising Law (FAL) when legal damages under the CLRA are available in the same amount for the same alleged harm. This decision has important implications for consumer class actions in California federal courts.

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