Raising “Cane” in Labeling Claims

by Cozen O'Connor
Contact

ChobaniClass action plaintiffs again allege that the labeling on Chobani’s Greek yogurt violates FDA regulations and misleads consumers, even though a federal court in California dismissed a similar labeling class action earlier this year.  The New York complaint filed in federal court highlights the various ways plaintiffs scrutinize food and beverage labels in these actions that allege a product is not as healthy or natural as advertised.

In Stoltz et al. v. Chobani (No. 1:14-cv-03827), the purported class action plaintiffs allege that Chobani violates FDA regulations and misleads consumers into thinking its yogurt is healthy even though it is “glorified junk food.”  The plaintiffs allege that Chobani accomplishes this by listing “evaporated cane juice” instead of “sugar” in its list of ingredients, by featuring “0%” on its label without context, and even by referring to its product as “Greek.”

“Evaporated Cane Juice” or “Sugar”

The plaintiffs allege that Chobani wrongfully lists “evaporated cane juice” rather than sugar as an ingredient.  This allegation is not novel, and as with similar claims in prior lawsuits, these plaintiffs contend that evaporated cane juice is not the “common or usual name.”  Therefore, the plaintiffs contend, Chobani mislabels its yogurt in violation of the Food, Drug & Cosmetic Act.  Plaintiffs argue that Chobani “should say they sweeten their products with plain old sugar.”

To support these claims, plaintiffs cite to the FDA’s draft guidance wherein the agency stated that referring to sweeteners as “evaporated cane juice” is misleading.  However the agency has yet to issue formal guidance on the matter, having just closed the public comment period in May.  Chobani may argue, among other defenses, that the court should defer to the FDA and dismiss these claims under the doctrine of primary jurisdiction.  We have previously written about other plaintiffs’ errant reliance on this draft guidance, and about the split in whether courts will defer to the FDA’s regulation in this context.

In February, Chobani defeated similar class action allegations, but that victory does not necessarily mean the yogurt manufacturer will enjoy similar success here.  In the appropriately-named Kane et al. v. Chobani (No. 5:12-cv-02425) the U.S. District Court for the Northern District of California—the plaintiff-friendly “food court”—dismissed claims alleging that Chobani mislead its customers by listing “evaporated cane juice” instead of “sugar” as an ingredient.  However, the court emphasized that the plaintiffs’ pleadings failed to adequately allege reliance despite multiple opportunities to do so.  Should the court here find that these pleadings are not similarly flawed, it would decide any dispositive motions on different merits.

“0%” What?

These plaintiffs also allege that Chobani misleads consumers by prominently featuring “0%” on its labels without saying to what “0%” refers.  In actuality, this figure refers to the percentage of milk fat in the yogurt.  However the plaintiffs here allege that the yogurt maker intentionally showcases “0%” without context in order to “piggy-back” on the zero calorie marketing efforts of diet products such as Coke Zero and Pepsi Max, which contain zero calories.  The same plaintiffs simultaneously filed suit against Fage (Stoltz et al. v. Fage [No. 1:14-cv-03826]), one of Chobani’s competitors, with similar “0%” allegations.

Chobani Is Not “Greek” Enough

Not only do plaintiffs allege that Chobani mislabels its yogurt with “evaporated cane juice” and “0%” but they also contend that Chobani’s Greek yogurt is not even “Greek.”  Unconvinced by Chobani’s website explanation of the manufacturing process and qualities of a Greek yogurt, the plaintiffs charge that “Chobani” is derived from the Turkish language, its founder and CEO lives and opened his yogurt plant in New York.  Moreover, they allege that Chobani’s yogurt is not made in Greece and is not made by Greek nationals.

These suits demonstrate that plaintiffs’ attorneys continue to scrutinize food labels and file class actions alleging that a multitude of terms violate FDA regulations and mislead consumers.  Food and beverage manufacturers need to carefully ensure their labels comply with FDA regulations.  These manufacturers should scrutinize their labels to ensure that a “reasonable consumer” will not be misled, and that all claims on the packaging are defensible.  Regardless of whether the labels include “evaporated cane juice,” “all natural,” or other similar content, plaintiffs will latch on to any errors or omissions.  The same holds true when marketing through social media like Facebook and Twitter because even seemingly innocuous posts may serve fodder for plaintiffs when the posts are about these commonly-litigated issues.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.