Alston & Bird’s Food & Beverage Digest | June 2020

FOOD  BEVERAGE D I G E S T J U N E 2 0 2 0 | 5 result, the plaintiff alleges that she and other purchasers of the product were deprived of the benefit of their bargain because they paid for products that could not be lawfully sold and were therefore valueless. The plaintiff asserts a single cause of action for violation of the Florida Deceptive and Unfair Trade Practices Act and seeks to represent a Florida class of purchasers who purchased the product from PetSmart with a credit or debit account. CBD Company’s Lab Reports Are Fraudulently High Accelerated Analytical Inc. v. Lifted Liquids Inc. , No. 3:20-cv-00442 (W.D. Wis. May 11, 2020). Accelerated Analytical and Accelerated Cannabis, two Wisconsin testing laboratories, are suing Lifted Liquids Inc. and its owner and CEO for falsifying or forging lab results from Accelerated. Lifted is a manufacturer and retailer of CBD products that sells both directly to consumers under its own label and provides “white labeled” products to other retailers. According to Accelerated’s complaint, Lifted sold numerous white-label products to other retailers along with falsified or made up certificates of analysis (COA) from Accelerated. Accelerated provided testing services for dozens of Lifted products in 2019, and some of those tests showed that certain Lifted products had a total THC content of 0.50%—well above the 0.30% limit for legal CBD. Despite providing test results and COAs showing the true THC content of certain Lifted products, Accelerated discovered in early 2020 that at least 24 of its COAs were altered and made available on a retailer’s website selling Lifted products that were advertised as havingTHC contents below the 0.30% threshold. In some instances, products that had tested as high as 0.50% were lowered to just 0.10% on the product labeling and corresponding COA. In other instances, Accelerated discovered that Lifted had created completely false COAs for products Accelerated never tested, including fake results and forged signatures from Accelerated employees. Accelerated is seeking injunctive relief to remove the falsified COAs as well as compensatory and punitive damages under the Lanham Act and Wisconsin Deceptive Trade Practices Act. Mushroom Supplements May Not Be So Mighty After All Gatling v. Windmill Health Products , No. 1:20-cv-04030 (S.D.N.Y. May 26, 2020). Health-conscious consumers filed a class action against Windmill Health Products for allegedly falsely marketing a line of its Country Farms Farm Fresh Nutrition products as “natural” when they contain synthetic ingredients. The plaintiffs claim they purchased the Fresh Nutrition supplements, including Mighty Mushrooms, Bountiful Beets Capsules, and Super Fruit & Veggies, because the products’ packaging contained the representation that theywere“natural.”But according to the complaint,Windmill’s representations aremisleading because the product’s ingredients include citric acid, silica, stearic acid, gelatin, magnesium stearate, and maltodextrin. They argue that consumers lack the meaningful ability to test or independently ascertain or verify whether the products really are natural and instead rely on the ingredients label to know the true nature of the ingredients in the products. The plaintiffs argue theywould not have paid a premium for these products if they had known the products contained synthetic ingredients. The plaintiffs demand monetary damages, injunctive relief, and disgorgement of Windmill’s earnings through its allegedly unlawful conduct. Vanilla Vigilante Moves On, Attacks Chocolate Label Sencen v. Froneri US Inc. , No. 7:20-cv-04024 (S.D.N.Y. May 24, 2020). The year 2020 is full of surprises. The latest: Spencer Sheehan filed a complaint challenging a vanilla product’s labeling for something other than its vanilla flavoring claims. A new putative class action filed against Froneri US alleges that the company falsely labels its Häagen-Dazs VanillaMilkChocolate IceCreamBars asbeingdipped inmilkchocolatewhen, according to the complaint, the ingredients list shows that the chocolate coating is actually a “milk chocolate and vegetable oil coating.”The complaint calls out that the front of the product’s box makes no reference to an oil and instead uses “milk chocolate” as part of the product name. “Milk Chocolate” is also shown prominently under an image of a chunk of chocolate along with a subheading that the vanilla ice cream is “dipped in, then drizzled in rich milk chocolate.” But according to the complaint, the ice cream bars’ coating does not meet the standards for identity for chocolate, and therefore cannot be labeled as such. While the ingredient list on the back of the product’s packaging clues customers in on the presence of vegetable oil, the plaintiff argues that most customers make purchasing decisions very quickly and do not take the time to examine the back of the product before they buy it. The complaint alleges that Froneri takes advantage of this reality to make money off unsuspecting consumers. Protein Pancakes Pack Smaller Punch than Advertised Minor v. Baker Mills Inc. and Kodiak Cakes LLC , No. 4:20-cv-02901 (N.D. Cal. April 28, 2020). “Increasingly health conscious” consumers are challenging the labeling and marketing claims by the manufacturers of Kodiak Cakes Flapjack and Waffle Mix. The putative class action alleges that labeling on the flapjack and waffle mix is false and misleading because the product contains 17% less protein than disclosed on the product’s packaging. The plaintiff bases the 17% figure on an amino acid content test of the product that supposedly helps to show that rather than having 14 grams of protein per serving, as advertised, the pancake and waffle mix only packs 11.5 grams. The suit also alleges that the product is misbranded because the required Percent Daily Value column in the Nutrition Facts Panel was left completely blank. The plaintiff expressly disclaims any causes of action under the FDCA or other regulations promulgated by the FDA and instead asserts claims under various California consumer protection laws, common-law fraud, and unjust enrichment.