FOOD BEVERAGE D I G E S T DECEMBER 2023 | 5 individual action with the hope that Defendant will accept responsibility for its actions and take all appropriate remedial measures.” But be warned, “[i]f Defendant refuses, Plaintiff will amend this Complaint to assert claims on behalf of a class.” While the plaintiff alleges that she “was genuinely interested in consuming and enjoying the product,” she also revealed that she “is a consumer rights ‘tester’ who creates public benefit by ensuring that companies comply with their obligations under California law”—a role that is alleged “both necessary and appropriate.”Truly, the hero that the Blow Pop community deserves. The complaint alleges causes of action for common-law fraud and violation of California’s Consumers Legal Remedies Act. If the plaintiff’s demands aren’t met, she threatens to bring the claims on behalf of a class of California consumers. Florida Consumer Went CoCo over Coconut Water Flavors Diaz v. Coco5 Inc., No. 23-CA-016723 (Fla. Cir. Ct. Nov. 20, 2023). This holiday season, a Florida consumer was not berry merry after purchasing several fruitflavored coconut drinks. The consumer filed a class action in Florida against a sports recovery beverage manufacturer that labels and sells several fruit-flavored coconut water drinks. The complaint alleges the products’ labeling is misleading and deceptive because the products’ front labels “prominently and conspicuously” promote the drinks’ fruit flavors: Cherry, Passion Fruit, and Pineapple, without more conspicuously disclosing that the products derive their characterizing flavors from “Natural Flavors,” rather than from the fruits themselves. While the complaint recognizes that “Natural Flavors” are disclosed on the ingredient lists, the complaint alleges the principal display panels (front labels) notably omit any qualification through use of the word “flavor” or “flavored.” The complaint alleges the products are not compliant with Florida’s food labeling laws and asserts claims under Florida’s Deceptive and Unfair Trade Practices Act and false advertising law, as well as for unjust enrichment. Pickle Pandemonium Moves to Federal Court Mayer v. Patriot Pickle Inc., No. 1:23-cv-01299 (W.D.N.Y. Dec. 15, 2023). A New York–based plaintiff sued a pickle manufacturer based on claims the defendants misleadingly market various kinds of Wahlburgers pickles as “all natural” and as containing “no preservatives” even though the pickle products contain sodium benzoate, an alleged preservative. The complaint alleges that the defendants admitted that their products contain sodium benzoate in declarations filed in a related lawsuit. The plaintiff initially filed this action in New York state court, but two defendants later removed the case to federal court. The plaintiff seeks to represent a class of all New York consumers who purchased the pickle products and asserts claims for violations of the New York General Business Law based on alleged deceptive acts and practices, false advertising, and breach of express warranties and unjust enrichment. Preservative-Free Claims Are Getting Cheesy Galbreth v. Kraft Heinz Co., 23CV051576 (Cal. Sup. Ct. Nov. 16, 2023). Hayes v. Kraft Heinz Co., 2023LA001257 (Ill. Cir. Ct. Nov. 21, 2023). A pair of consumers filed class actions in California and Illinois state courts, claiming they were misled by the defendant’s “no preservatives” claims on certain mac n’ cheese products. The Golden State consumer claims she relied on the mac n’ cheese product’s representations that they contained “No Artificial Flavors, Preservatives, or Dyes,” but later learned that the products allegedly contain synthetically manufactured citric acid, a well-known preservative. The complaint alleges that because the products use a purported synthetically manufactured form of citric acid, the representations that the product contains “No Artificial Flavors, Preservatives, or Dyes,” is false and misleading because citric acid allegedly “functions as a preservative in the Products regardless of whether” the defendant intended it to. Based on those allegations, the complaint alleges violations of California’s Consumers Legal Remedies Act, California’s Unfair Competition Law, and breach of express warranty. Less than a week after the defendant was hit with the California suit, an Illinois consumer filed a similar class action challenging the “No Artificial Preservatives” claim on 10 mac n’ cheese products based on the inclusion of the alleged “synthetic preservatives sodium phosphate and sodium triphosphate.” Similar to the California lawsuit, the Illinois complaint claims those ingredients function as preservatives in the challenged mac n’ cheese products. The complaint alleges that reasonable consumers were deceived by the manufacturer’s false “no preservatives”labeling statements and seeks recovery under the Illinois Consumer Fraud and Deceptive Business Practices Act, common-law fraud, and unjust enrichment. Just in time for Christmas, both cases were removed to federal courts and then consolidated in the Northern District of Illinois. Return the Change, Ya Filthy Animals Jack v. Stop & Shop Supermarket Co., No. 818611/2023E (N.Y. Sup. Ct. Nov. 20, 2023). Another holiday season is in the books, and many consumers likely took advantage of the numerous sales and discounts offered by retailers across the country. But, embodying the generous spirit of the holiday season, Spencer Sheehan of Sheehan & Associates, P.L.C., is here to warn consumers that some sales aren’t all they’re cracked up to be. In a lawsuit filed on behalf of a New York resident, Sheehan contends that a New England–based grocer is misleading customers by marking up its original grocery prices before putting the same items on sale. According to the complaint, the grocer uses terms such as “sale,”“coupon,”“save,”and “discount” to entice its customers into buying more groceries, but unbeknownst to those unwary customers, the former, full-price items were purportedly not as high as advertised. The complaint contends that the bona fide pricing mix-up is not just Scrooge-worthy, it gives rise to a class action. Accordingly, the plaintiff seeks to represent a class of New York consumers who purchased items from the grocer on sale and bought more of the items than they otherwise would have, had the former prices been at bona fide levels.
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