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Food Labeling|Class Action Survives

SAN JOSE (CN) - Some claims remain, but Kraft Foods, Cadbury Adams and a smaller company won partial dismissal of a class action alleging inaccurate labeling.

Lead plaintiff Susan Ivie claimed Kraft Foods Global, Cadbury Adams USA and Back to Nature Food Co. put misleading information on federally mandated labels, violating state and federal laws, including California's Unfair Competition Law (UCL); its Fair Advertising Law (FAL); the Sherman Food, Drug and Cosmetic Laws; the Consumer Legal Remedies Act (CLRA) and the Song-Beverly Consumer Warranty Act.

Ivie claimed the defendants also violated the federal Magnuson-Moss Warranty Act; the Food, Drug and Cosmetic Act; and the Nutrition Labeling and Education Act.

U.S. District Judge Ronald M. Whyte granted dismissal with prejudice on three claims, dismissal with leave to amend on several more, and refused to dismiss some state law unfair competition, fair advertising and consumer law claims.

"The plaintiffs claims are based on allegedly unlawful and misleading labels or packaging on a variety of defendants' consumer food products including gum, crackers, granola, fruit punch, cheese, nut mix, lemonade, stuffing mix, Jell-O and Easy Mac," Whyte wrote in his 25-page order.

Ivie's complaint centered around specific alleged violations of the Sherman law, in regard to the products' "(1) 'natural' or 'all natural' claims; (2) 'no artificial' colors/sweeteners/flavors/preservatives/ingredients claims; (3) nutrient content claims; (4) health claims; (5) 'sugar free' or 'sugarless' claims; (6) stated serving sizes; and (7) 'evaporated cane juice' claims," Whyte summarized.

Ivie said she would not have bought the products had she known the nutritional information was inaccurate.

"Plaintiff alleges she 'read the labels,' and was 'misled ... with respect to the nature, nutritional content and healthiness of the products she was purchasing.' Plaintiff further alleges that she 'based and justified the decision to purchase defendants' products in substantial part on defendants' package labeling, packaging and website claims,' and 'would have foregone purchasing defendants' products and bought other products readily available at a lower price,'" Whyte wrote.

Ivie claimed that other products bore similarly misleading labels. She said she did not buy them, but that Back to Nature Classic Cream Cookies, Fudge Mint Cookies and Fudge Striped Cookies falsely claim "no artificial flavors or preservatives," and that Halls Refresh Sugar Free Drops and Trident White Spearmint Sugar Free Gum make false "sugar free" claims on packaging.

Whyte granted the defendants' motion to dismiss with prejudice the Song-Beverly and Magnuson-Moss Warranty Act claims.

He granted defendants' motion to dismiss, with leave to amend, the UCL, FAL and CLRA claims based on the products that Ivie did not buy, the "one mint" serving size, the "natural lemon flavor" label on Crystal Light products, the "good source" and "wholesome" labels on Planter's Nut-rition Wholesome Nut Mix and the "with added ... vitamin D" and "reduced fat" labels on Kraft Deli Deluxe Cheese.

Specifically, Ivie claimed the labels on Kraft's Mexican Style Four Cheese and Deli Delux Cheese products are "unlawful for failure to include the required disclosure statement of: 'See nutrition information for fat content' (required when the fat content per reference amount exceeds 13.0 grams of fat or 4.0 grams of saturated fat)," Whyte wrote. But Whyte found: "The Kraft Mexican Style Four Cheese Blend does, in fact, contain the required referral statement."

Whyte said the plaintiffs "do not sufficiently plead any claim for a violation of the FDA's prominence and placement requirements for referral statements," pre-empting those claims.

Whyte set a case management conference for April 19.

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