Cross-posted at WLF’s Forbes.com contributor page
With class action lawyers still buzzing around food makers like angry gnats in summer, targets of these labeling and marketing suits welcome any instance where a federal judge gets the fly-swatter out and slaps down a case or two. Or three, as we’re about to describe.
Evidence, Why do We Need Evidence?: Ries v. AriZona Beverages. We’ve been a bit hard on the U.S. District Court for the Northern District of California (aka “The Food Court”). We’ve even been critical of Judge Seeborg’s ruling in Ries late last year. His latest ruling in this “high fructose corn syrup (HFCS) and citric acid are not ’100% natural’” class action, however, hits the spot just like cold ice tea. The defendants moved for summary judgment based on the fact that Ries had not provided evidence that HFCS and citric acid are artificial. Judge Seeborg had granted Ries discovery last September and urged her to find such evidence.
As the judge wrote in his March 28 ruling, “Plaintiffs have not introduced any evidence showing that HFCS or citric acid are artificial.” The plaintiffs urged Judge Seeborg to “take judicial notice” of the fact that federal patents have been issued for the process of producing HFCS, which they claimed proved it was not natural. The judge saw this as “an extension of their rhetoric,” and that “In the face of a motion for summary judgment, rhetoric is no substitute for evidence.” Separately the judge also found that there was not a “scintilla of evidence” to support damages in the case, and that due to the attorneys’ failure “to prosecute this action adequately,” the class action should be decertified due to inadequate representation.
What is it, Honey?: Cardona v. Target Corp. After purchasing a $3 bottle of honey at Target, Ms. Cardona allegedly read in an online newspaper article that her Target-brand honey had been stripped of its pollen. That action, Ms. Cardona allegedly believes, strips honey of its identity as “honey,” so the hoodwinked shopper filed a class action lawsuit claiming violations of California laws.
The defendant moved to dismiss under a theory of federal preemption. Federal rules provide no standard for what constitutes “honey,” Target argued that in such situations, § 343(i)(1) of the Nutrition Labeling and Education Act (NLEA) requires companies to utilize “the common or usual name” of the food (which, of course, is “honey”). After analyzing the NLEA, Judge King of the Central District of California concluded that a successful lawsuit requiring Target to label its product “honey (without pollen)” would directly conflict with the federal regulation, and thus Ms. Cardona’s suit was preempted.
No Fruit in Particular: Brazil v. Dole Food Co. Mr. Brazil filed a nationwide class action alleging that the labeling and promotion of various fruit-related products were fraudulently misleading under California consumer protection laws. The offending information included claims of “natural,” “sugar-free,” and “fresh.” Judge Koh of the Northern District of California held that Brazil had standing to bring his claims, and that the claims were not preempted by federal law. She also held that the claims were legally “plausible.”
However, Judge Koh ended up dismissing five of Brazil’s causes of action for failing to plead fraud claims with “particularity” as required by Federal Rule of Civil Procedure 9(b). In his 61-page complaint, Mr. Brazil failed to “state which Dole products are at issue in this case.” The complaint even references some products, like tea, that aren’t even at issue in the case. The court intimates that some language had been copied from “claims from similar lawsuits filed in this district.” Oops! In addition, Mr. Brazil failed to “indicate the content of the labels upon which [he] allegedly relied.”
Judge Koh did permit Brazil and his lawyers to file an amended complaint within 21 days to cure these deficiencies, so likely we’ve not heard the last of this case.