New Lawsuits Filed

Parent Wants to Send Baby and Toddler Food Manufacturer to Time Out

Sanchez v. Nuture Inc., No. 5:21-cv-08566 (N.D. Cal. Nov. 3, 2021).

A California mother recently filed a putative class action challenging nutrient content claims on certain Happy Baby and Happy Tot brands baby and toddler food products. One line of challenged products, Happy Tot Fiber and Protein pureed pouches, allegedly states that it contains 3 grams of protein and fiber per serving and that "PROTEIN is a key building block for little growing bodies & FIBER helps support the digestive system! Here's to a happy & healthy start!" She also challenges another line of baby foods labeled as "Super Smart" that claims that added DHA and choline are promising to "help support a healthy brain."

Unlike most nutrient content suits, the complaint does not allege that the defendant's products lack the advertised amounts of the nutrients. Instead, the plaintiff claims that she paid a premium for the baby foods because she believed that they would provide more benefits than competitors', despite the purported lack of evidence that increased protein or fiber intake are appropriate or recommended for infants and toddlers. The complaint points to FDA regulations, which prohibit nutrient content claims on food intended specifically for infants and children under two years of age. The plaintiff seeks to certify a class of similarly irked California parents to pursue claims under the state's consumer protection statutes, common-law fraud, and unjust enrichment.

One Tequila, Two Tequila, Three Tequila, Fl— Agave Syrup?

Khaimova v. Anheuser-Busch LLC, No. 1:21-cv-05268 (N.D. Ill. Oct. 5, 2021).

An Illinois consumer is taking shots at Bud Light Platinum Seltzer's use of the phrase "Made with Agave" on its label, alleging that the hard seltzer misleadingly suggests that the drink is made with distilled agave spirits (like tequila). In reality, the consumer claims, there is nothing neat about the seltzer's ingredients. The hard seltzer contains only agave syrup sweetener.

Nevertheless, the complaint alleges, the hard seltzers use premium language to mislead consumers into thinking that they contain distilled agave spirits. For instance, the seltzer's use of the word"Platinum"allegedly implies a type of tequila in the seltzers, and the relatively high alcohol content by volume, 8%, allegedly suggests the presence of distilled spirits. The seltzers are also advertised as "Made for the Night,"which allegedly suggests that the seltzers contain premium spirits more appropriate for a night out. As a chaser, the complaint finally claims that the seltzer's packaging shows an image of the clear liquid being poured into a glass, which supposedly is similar to clear-colored spirits that are consumed in a glass. The plaintiff seeks to represent state classes of consumers for claims for violations of Illinois's consumer protection statute, breach of warranty, negligent misrepresentation, fraud, and unjust enrichment.

Vitamin C You Later, Hard Seltzers

Kuciver v. Fermented Sciences Inc., No. 1:21-cv-05668 (N.D. Ill. Oct. 24, 2021).

Striking a blow to crunchy tailgaters everywhere, one Illinois resident has alleged that a brand of hard seltzers and hard kombucha are not the cauliflower crust of the alcohol world. According to a putative class action, the defendant's "Flying Embers" products mislead consumers about the health benefits of its products, specifically about the addition of Vitamin C and probiotics to its alcoholic beverages.

The plaintiff, who purports to enjoy fruits and vegetables, contends that she purchased a watermelon hard kombucha and a pieapple cayenne hard seltzer because they allegedly highlighted the health benefits of the fizzy concoctions. But fortification with Vitamin C and probiotics, she alleges, violates FDA guidance and does not render an alcoholic beverage a source of nutrition. And in any event, she claims, the detrimental effects from consuming alcohol outweighed any benefit from including these nutrients and probiotics. She seeks to represent a class of Illinois consumers for violations of Illinois's consumer protection statute, breach of warranty, negligent misrepresentation, fraud, and unjust enrichment.

For Salty Consumer, XMissed the Spot for HimalayanTreasure

Mogollon v. Costco Wholesale Corporation, No. 1:21-cv-08361 (S.D.N.Y. Oct. 10, 2021).

It is salt. It is from the Himalayan mountains. It has hues of pink, red, and white. It is even ground. But is the defendant's"Ground Himalayan Pink Salt"deceptive? Relying on an Indiana Jones style map, a New York consumer alleges it is.

The plaintiff alleges that the labeling on the defendant's Himalayan salt deceives consumers into believing it is sourced from the Indian Himalayan mountains that border Tibet and Nepal. According to the complaint, it does so with the statement that the salt is sourced "from the heart of the Himalayan Mountains" and an "Indiana Jones-inspired map depicting Indian cities." Instead, the salt is a product of Pakistan. Although the consumer claims she was misled, this fact is disclosed on the product's label, and Pakistan is indeed a country that is home to portions of the Himalayan mountains. The consumer seeks to certify New York and Connecticut classes for claims under the states' consumer protection laws and for breach of warranty, misrepresentation, and unjust enrichment.

The defendant's responsive pleading is due January 18, 2022, so we will see whether the plaintiff "chose ... poorly" in bringing this suit.

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