New Lawsuits Filed

Don't Go Gushing About This Fruit Snack!

McDermott v. General Mills Sales Inc., No. 1:22-cv-01555 (N.D. Ill. Mar. 24, 2022).

Naturally, Gushers Fruit Snacks are all-natural, right? Not so fast, says Sheehan & Associates P.C. (naturally, on behalf of its client). Reverting to the traditional "natural" lawsuits we've seen before, the unremitting firm again represents a plaintiff in a putative class action in Illinois. The named plaintiff contends that the Gushers packaging is false and misleading because the fruit snack advertises that it contains no artificial flavors, yet it contains "malic acid."According to the complaint, L-malic acid occurs naturally in various fruits, but laboratory analysis indicates that the makers of Gushers used the artificially produced DL-malic acid instead. Customers are harmed because they pay a premium, believing that "Strawberry Splash" and tropical-flavored Gushers contain only naturally flavored ingredients.

According to the plaintiff, the misrepresentations give rise to claims for violations of state consumer protection laws, breaches of warranty, negligent misrepresentation, fraud, and unjust enrichment. The plaintiff seeks to represent an Illinois and multistate class of consumers.

Water Enhancer Allegedly Enhances Flavors with Non Natural Ingredients

McCall v. Publix Super Markets Inc., No. 8:22-cv-00584 (M.D. Fla. Mar. 14, 2022).

A putative class action with strikingly similar allegations to the Gushers complaint (and also featuring a plaintiff represented by Sheehan & Associates P.C.—naturally) alleges that a popular grocery chain's brandof strawberry-watermelonwater enhancer deceives consumers by not disclosing that it includes non-natural ingredients. While the water enhancer doesn't claim to be "All Natural," according to the plaintiff the statement "Natural Flavor With Other Natural Flavors" combined with omitting any reference to artificial flavors on the front label and displaying pictures of strawberries and watermelon caused consumers to expect the product to contain only natural flavors.

After a complex organic chemistry lesson about the atomic makeup of malic, L-malic, and DL-malic acid, the complaint winds its way to alleging that the product label is deceptive because the ingredient designates the malic acid used by its "generic name" (malic acid) rather than its specific name, "DL-malic acid," which it claims is the artificial formulation of the ingredient that is used in the product. According to the complaint, the defendant adds DL-malic acid to (gasp) enhance the flavor of its water enhancer and make it taste tart and fruity, like strawberries and watermelon.

According to the complaint, the defendant"had the option to add naturally extracted L-Malic Acid ... but intentionally used artificial DL-Malic Acid because it was likely cheaper or more accurately resembled natural flavors than citric acid or other acids." The plaintiff seeks to certify an Alabama andmultistate class to pursue claims under Florida's consumer protection statute and for breach of contract, breach of express warranty, negligent misrepresentation, fraud, and unjust enrichment.

Oh, Mega Deception for Fish Oil?

Foster v. Whole Foods Market Group, No. 1:22-cv-01240 (E.D.N.Y. Mar. 25, 2022).

The defendant's 100% wild-caught fish oil softgels advertise that they contain "Omega-3s EPA & DHA."Directly below that representation is the phrase"1000mg Per Serving,"and below that, "From Small Cold-Water Fish." According to one consumer in New York, this allegedly fishy phrasing misleads consumers who believe that based on the product's labeling—with one phrase directly above the other—the softgels contain 1000mg of omega-3s EPA & DHA per serving, when in reality, they only contain 300mg of omega-3s.

The plaintiff casts a wide net of claims and seeks to represent a New York and nationwide class of consumers who purchased the product believing they were ingesting more than three times the actual amount of this "essential" fatty fish supplement per serving. On behalf of the New York subclass, the plaintiff seeks relief for purported violations of the New York General Business Law and breaches of express warranty. The plaintiff also seeks relief on behalf of all putative claimants for the defendant's alleged unjust enrichment.

I Can't Believe It's Not Made with (Significant Amounts of ) Olive Oil?

Hite v. Unilever, No. 7:22-cv-02188 (S.D.N.Y. Mar. 16, 2022).

A mayonnaise dressing manufacturer and distributor faces a putative class action alleging that the product's "With Olive Oil" label is false and misleading. The plaintiff alleges that the "With Olive Oil" claim, along with pictures of two olives on branches and green packaging, creates a misleading expectation that the product contains a significant amount of olive oil, which it allegedly does not. Instead, according to the complaint, the most predominant oil is soybean oil, followed by olive oil.

At this point, the plaintiff seems to have as much interest in extending the olive branch as the product contains olive oil (allegedly). She seeks to certify NewYork and multistate classes of purchasers and asserts violations of New York law, fraud, breach of contract, breach of warranties, violation of the Magnuson–MossWarranty Act, negligent misrepresentation, and unjust enrichment.

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