Alston & Bird Food Beverage Digest, May 2021 – Food, Drugs, Healthcare, Life Sciences

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New Lawsuits Filed

Natural Flavors Not Sufficient to Carry Again Water’s

Kelly v. Complete Meals Market Group Inc., No. 1:21-cv-03124
(S.D.N.Y. Apr. 11, 2021).

A bitter shopper has asserted a putative class motion towards an
upscale grocery chain, alleging it overcharges customers for its
“Lemon Raspberry Italian Glowing Mineral Water.” However
the patron’s tart perspective towards the refreshing drink isn’t
as a result of it consists of mineral water with simply sufficient carbonation
to present that satisfying, crisp end. It isn’t as a result of the
water is sourced from a boot-shaped nation (well-known for its
delicacies, vistas, and, in fact, water) that’s over 4,000 miles
from the place the plaintiff filed the grievance. It isn’t even
as a result of the product is licensed “USDA Natural” and
identifies “Natural Pure Flavors (Raspberry, Lemon)”
amongst its elements.

The precise motive, the plaintiff alleges, is much extra insidious.
Wielding photos of lemons and raspberries and the phrases
“Lemon Raspberry,” the defendant purportedly tips
customers into believing an considerable quantity of lemon and
raspberry is used for the water. The grievance claims there
is not, nor does the water’s taste come predominantly from
lemons and raspberries. The plaintiffs search to certify an
eight-state class of customers for violations of shopper
safety legal guidelines, breach of guarantee, fraud, negligent
misrepresentation, and unjust enrichment.

Cheese Louise! Boxed Mac and Cheese Accused of
Containing Dangerous Chemical compounds

Franklin v. Normal Mills Inc., No. 2:21-cv-01781
(E.D.N.Y. Apr. 1, 2021).

Stuve v. The Kraft Heinz Firm, No. 1:21-cv-01845 (N.D.
In poor health. Apr. 6, 2021).

Lavalle v. Normal Mills Inc., No. 7:21-cv-03103 (S.D.N.Y.
Apr. 9, 2021).

A trio of newly filed lawsuits takes intention at everybody’s
favourite consolation meals, the ever present boxed macaroni and cheese. In
lawsuits filed within the Japanese District of New York, Northern
District of Illinois, and Southern District of New York, the
plaintiffs allege that Annie’s and Kraft macaroni and cheese
merchandise fail to reveal that they comprise, or are liable to
containing, allegedly harmful phthalates. These phthalates
purportedly enter the merchandise from the product packaging and
equipment used to make the merchandise. The plaintiffs additional contend
that phthalates trigger a variety of well being issues, from
fertility points to neurodevelopmental issues corresponding to ADHD and
anti-social habits. The lawsuits are, largely, primarily based on a
2017 examine carried out by the Coalition for Safer Meals Processing and
Packaging, a nonprofit shopper advocacy group (though the
plaintiffs don’t clarify why they waited practically 4 years after
this apparently bombshell examine).

The plaintiffs’ claims are premised on each alleged
omissions and misrepresentations in regards to the presence of phthalates
(or the chance the merchandise may comprise phthalates) and advertising and marketing
the merchandise as wholesome and healthful. The plaintiffs search to
certify nationwide and state lessons, asserting claims for
violations of shopper safety statutes, fraud, breach of
guarantee, and unjust enrichment.

“Naturally Flavored” Water Goes a Little

Gammino v. The Kroger Firm, No. 5:21-cv-02933 (N.D.
Cal. Apr. 22, 2021).

Reminiscent of the extra conventional “pure”
lawsuits, a California shopper is in search of to certify a nationwide
class for claims {that a} line of glowing waters is fake and
misleading. The fizzy waters symbolize they’re “Naturally
Flavored,” a declare the plaintiff believes is nothing however scorching
(carbonated) air. As a substitute, the grievance alleges, the waters
comprise the synthetic flavoring ingredient dl-malic acid. In contrast to
its naturally occurring cousin (l-malic acid), dl-malic acid
allegedly is produced in petrochemical vegetation and derived from
tasty merchandise like benzene and butane.

However the plaintiff claims there’s extra. The defendant grocer
additionally purportedly conceals from customers that its effervescent
water line is synthetic. Though the elements listing discloses
that the glowing waters comprise malic acid, it doesn’t specify
whether or not it’s the naturally occurring l-malic or the artificially
produced dl-malic acid. For this purported deception, the plaintiff
seeks to certify a nationwide class for claims below varied
shopper safety legal guidelines, breach of guarantee, fraud, and unjust
enrichment, and injunctive reduction.

Hinkley v. Baker Mills Inc., No. 2:21-cv-00221 (D. Utah
Apr. 13, 2021).

Looking for to extend their protein consumption, a bunch of
“well being acutely aware” customers are difficult the protein
content material claims made by the producers of Kodiak Truffles Buttermilk
Flapjack and Waffle Mixes. The swimsuit alleges that the flapjack and
waffle combine falsely claims that the merchandise comprise extra protein
than it truly does. Based mostly on amino acid content material testing of the
merchandise, the plaintiffs allege that the pancake and waffle combine
doesn’t pack the marketed 14 grams of protein per serving however
relatively comprises a measly 11.5 grams.

Venturing right into a nuanced chemistry class befitting
gainz-seekers, the swimsuit additionally claims that the protein utilized in
flapjack and waffle combine packs much less punch than higher-quality
proteins. When the combination’s amino acid and protein content material is
adjusted by the “Protein Digestibility Corrected Amino Acid
Rating” (or the unhelpfully lengthy acronym “PDCAAS”),
the grievance claims that the merchandise present even much less
absorbable protein per serving. The plaintiffs search to
certify a 49-state class for unjust enrichment and fraud and state
lessons for New York, Florida, and Illinois below their shopper
safety legal guidelines. As we
beforehand lined, the fiftieth state— California—is
already at play in a separate putative class motion introduced by the
similar legislation agency and elevating the identical allegations.

Shopper Burned by Licensed Pure

Dantona v. Uncooked Parts USA, No. 604832/2021 (N.Y. Sup.
Ct., Nassau County, Apr. 20, 2021).

Because the summer time months strategy and solar safety strikes to the
forefront of customers’ minds, one shopper is taking a tough
take a look at the elements of her sunscreen. She filed swimsuit in New
York state courtroom towards a sunscreen model for its allegedly
misleading advertising and marketing of its merchandise. The plaintiff alleges that Uncooked
Parts USA touts its varied sunscreen merchandise as
“licensed pure” although they comprise
artificial supplies, corresponding to zinc oxide and tocopherol. The
plaintiff claims that buyers haven’t any significant capacity to check
or independently affirm that the merchandise comprise these artificial
supplies as a result of the character of the elements isn’t obvious by
the merchandise’ ingredient listing. The proposed class motion
contains claims for violations of New York shopper legal guidelines together with
breach of specific guarantee and unjust enrichment.

All-Butter Pound Cake Lacks … Butter?

Salouras v. Sara Lee Frozen Bakery LLC, No.
1:21-cv-02117 (N.D. In poor health. April 19, 2021).

A disgruntled pound cake fanatic has sued Sara Lee for its
allegedly misleading, unfair, and false merchandising practices
concerning its All Butter Pound Cake. Regardless of containing the
illustration that the deal with is an “All Butter Pound
Cake,” the plaintiff alleges that it comprises one other, decrease
high quality shortening ingredient—soybean oil. The grievance
claims that the bakery’s branding and packaging of the product
deceive customers into considering that the pound cake solely contained
butter as a shortening ingredient. Based on the plaintiff,
pound cake made with different shortening elements other than butter
are value much less and the misleading promoting precipitated her to pay extra
for the product than she in any other case would have. Just like the Prairie
Farms vanilla case mentioned above, this grievance additionally takes intention
at Sara Lee’s use of the meals coloring annatto, claiming that
it imparts a yellowish hue that bolsters the misrepresentation and
makes the product seem to comprise extra butter than it truly

Just lately, nevertheless, the plaintiff voluntarily dismissed her
grievance with out prejudice. We could but see how this sordid story of
misleading desserts ends.

Movement to Dismiss

Procedural Posture: Denied partially

Canine House owners Have Their Day as Some Claims Proceed Previous

In re Large Coronary heart Pet Manufacturers Litigation, No. 4:18-cv-0861
(N.D. Cal. April 27, 2021).

Pet homeowners who introduced swimsuit towards a pet meals firm alleging
misrepresentations scored a partial victory of their litigation
when a federal district courtroom discovered their misrepresentation claims
survived a movement to dismiss. Based on the plaintiffs, Large
Coronary heart Pet Manufacturers’ meals contained a false and deceptive label
that it was “100% full and balanced,” when in actuality
it contained the sedative pentobarbital. The courtroom discovered that the
plaintiffs had alleged sufficient to assist that they had been truly
deceived by the “100% full and balanced” label. The
plaintiffs’ reliance on the misrepresentations was a key issue
within the determination. As a result of the courtroom discovered that the plaintiffs had
not relied on the misrepresentations on the corporate’s web site,
the claims primarily based on these misrepresentations had been dismissed.
Accordingly, the case will proceed on the misrepresentation claims
primarily based on the statements on the pet food baggage.

Movement for Multidistrict Litigation

Procedural Posture: Granted

Customers Create Caffeinated Consolidated Motion in
Campaign for Espresso

In re Folgers Espresso Advertising and marketing and Gross sales Practices
, No. 2984 (J.P.M.L. Apr. 1, 2021).

A wave of putative class actions alleging that Folger Espresso
Firm, its father or mother J.M. Smucker Co., and others exaggerated how
many cups of espresso may be created from their floor espresso canisters
has been consolidated right into a multidistrict litigation in Missouri
federal courtroom.

The consolidated lawsuits allege a scientific follow of false
promoting by the espresso firm and retailers in vastly
overstating the quantity of espresso that may be created from a canister
in an effort to cost a better value. The panel that consolidated the
actions discovered that the plaintiffs within the varied separate instances
search to symbolize overlapping lessons of purchasers of the product
and that there have been efficiencies available from the consolidation
of the actions.


Procedural Posture: Granted

Breezing right into a Vanilla Settlement

Biegel v. Blue Diamond Growers, No. 7:20-cv-03032
(S.D.N.Y. Apr. 19, 2021).

Blue Diamond requested a New York federal courtroom to present its preliminary
blessing on its settlement with a proposed class of Almond Breeze
vanilla-flavored product patrons, utilizing the Califia Farms vanilla
milk settlement as its mannequin. Within the putative class motion, the
plaintiffs alleged that they bought almond milk merchandise relying
on the entrance label representations of “vanilla [with other
natural flavors]” and that they “anticipated a
non-negligible quantity of extracts from vanilla beans, as a result of they
anticipated that if the Merchandise contained artificial taste
elements, the Merchandise would in truth disclose this on the
entrance label with statements they had been ‘Artificially

Topic to caps, prospects with proof of buy can obtain
money funds of as much as $1 per merchandise, and people with out proof, $0.50
per merchandise. The settlement is valued at roughly $2.6 million.
This settlement, which quantities to greater than a hill of beans, goes
towards the pattern of instances the place defendants have secured full or
partial dismissals of vanilla-flavor claims.


FDA Continues to Maintain the Line In opposition to CBD Well being

Warning Letter from Meals & Drug Administration to BioLyte
Laboratories LLC (Mar. 18, 2021).

Warning Letter from Meals & Drug Administration to Trustworthy Globe
Inc. (Mar. 15, 2021).

The Meals & Drug Administration (FDA) maintains that its
official place is that cannabidiol (CBD), by advantage of getting
been the topic of medical research and the eventual approval as a
pharmaceutical (Epidiolex®), might not be utilized in meals or dietary
dietary supplements. The FDA doesn’t, nevertheless, prohibit using
hashish or cannabis-derived elements in beauty merchandise. And
in follow at the very least, the FDA has adopted a mellower strategy,
imposing solely these CBD merchandise with “over-the-line”
well being claims.

Latest FDA warning letters issued on March 15 and 18, 2021 to
makers of topical CBD merchandise point out that the FDA continues to be
taking this extra focused strategy. In these letters, the FDA
signifies that the entrepreneurs make claims that the product is
supposed to diagnose, remedy, mitigate, deal with, or forestall illness
(i.e., drug claims), corresponding to claims involving ache reduction. The
FDA’s continued trickle of warning letters focusing on
CBD-containing merchandise continues to serve discover to the CBD
trade that the company isn’t letting up on its enforcement
efforts when entrepreneurs cross the road into well being claims.

Prop 65 Warning Necessities Now in Place for On-line
Gross sales of Alcoholic Drinks

Proposition 65 was permitted by Californians in 1986 and requires
warnings when a enterprise knowingly or deliberately exposes
people to chemical substances that the state has recognized as inflicting
most cancers or reproductive toxicity, except an exception to the warning
requirement applies. Efficient April 1, 2021, for alcoholic
drinks offered over the web or via a catalog, as well as
to the warnings offered on the web or within the catalog, a
warning should even be offered to the purchaser or supply
recipient both earlier than or contemporaneously with the supply of
the product. The warning, which have to be readable and conspicuous to
the recipient earlier than consumption, may be offered both: (1) on or
within the delivery container or supply package deal; or (2) by electronic mail or
textual content message as a part of an electronically delivered receipt or
buy affirmation.

New York Lawyer Normal Cracking Down on Arsenic in
Child Meals

Press Launch, New York Lawyer Normal, “Lawyer Normal
James Probes Poisonous Substances Present in Child Meals Offered in New
York” (Apr. 29, 2021).

The New York legal professional normal has launched an investigation into
sure child meals makers in regards to the quantity of arsenic discovered of their
toddler rice cereal merchandise. The New York legal professional normal
requested info from the businesses to find out whether or not the
quantity of arsenic of their merchandise exceeds the authorized most
permitted by state legislation. She can be assessing the businesses’
compliance with New York’s shopper safety legal guidelines in
reference to this concern.

This investigation comes on the heels of a congressional report
launched in February that exposed harmful ranges of heavy metals
in child meals. Along with the New York legal professional normal’s
investigation, the report prompted dad and mom to sue main
producers of child meals over claims of misleading promoting,
claiming that the merchandise are marketed as wholesome however fail to
point out that they embody heavy metals.

The content material of this text is meant to supply a normal
information to the subject material. Specialist recommendation needs to be sought
about your particular circumstances.

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