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July 23, 2014 / Alexis Domb

Settlement Reached in Suave Keratin Infusion Class Action

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On July 9, 2014, a federal judge granted approval of a $10.2 million settlement in the Suave Keratin class action lawsuit, which alleged that Unilever PLC—the manufacturer of the Suave Keratin Infusion 30-Day Smoothing Kit—had engaged in the sale of defective products. The class action, filed in 2012 (Sidney Reid, et al. v. Unilever United States Inc., et al., Case No. 1:12-cv-06058, in the U.S. District Court for the Northern District of Illinois), alleged that Unilever’s Suave Keratin Smoothing Kit caused consumers to suffer hair loss and/or scalp injury.

Class members of the Suave Keratin class action settlement include all individuals who purchased the Suave Professionals Keratin Infusion 30-Day Smoothing Kit in the United States for personal or home use prior to February 17, 2014.

The lawsuit claimed that Unilever allured consumers into buying the Suave Keratin Infusion Smoothing Kit by making false and misleading statements about the safety of its hair product. Specifically, this class action argued that Unilever failed to disclose to consumers the unreasonable risk of hair and/or scalp injury associated with use of the Suave Keratin 30-Day Smoothing Kit.

Unilever denies such allegations but has agreed to the settlement to avoid the burden of ongoing litigation. Under the terms of the settlement, a Reimbursement Fund worth $250,000 and an Injury Fund worth $10 million will be created. The Injury Fund will compensate injured class members for their medical expenses and emotional distress.

The settlement provides that class members who suffered Smoothing Kit injuries may submit reimbursement claims ranging between $40 and $25,000, based on the extent of their injuries and proof of their treatment costs. Additionally, class members who did not suffer injury from the Smoothing Kit may receive reimbursements of up to $10.

U.S. District Judge Ruben Castillo granted approval of the Unilever class action settlement after the final fairness hearing. Judge Castillo overruled objections from class members who argued the payout was too small for those who suffered serious injuries as a result of using the Suave Smoothing Kit. Furthermore, Judge Castillo stated that class members were free to opt out of the settlement and file their own individual personal injury lawsuits.

If you or someone you know has suffered injuries as a result of false or misleading advertising, you may be titled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.

July 2, 2014 / Scott Tillett

California Federal Court Denies Certification of Consumer Class Action Against ConAgra Foods

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On June 13, 2014, a California federal judge denied a motion to certify a class of California consumers in a class action against ConAgra Foods for alleged deceptive and misleading advertising of the company’s Hunt’s tomato products, PAM cooking sprays, and Swiss Miss hot cocoas.

Plaintiffs Levi Jones, Christin Sturges, and Edd Ozard filed the class action on behalf of themselves and all Californians who had purchased Hunt’s, PAM, and Swiss Miss products, alleging that the company mislabeled its products as 100% natural, when they contained chemicals, preservatives, and other artificial ingredients and made unlawful claims respecting the products’ antioxidant properties. By filing the lawsuit as a class action, the plaintiffs sought to represent a larger group, or “class”; in this case, California consumers who had also purchased the products. In order to proceed as a class action in federal court, the plaintiffs were required to file a motion for class certification, demonstrating to the court, among other things, that the class meets various prerequisites, including commonality of the claims of the various class members (e.g., that they have all been subjected to the same unlawful practices by the defendant), that the named class members’ claims are typical of those of the class members they seek to represent, and that the plaintiffs’ lawsuit will adequately protect the interests of the class.

The court denied the plaintiffs’ motion for class certification with respect to each of the three products at issue for several reasons. The reasons cited by the court included difficulties determining who the class members are and how many of which type of product each class member purchased due to numerous label changes for the various products and lack of consumer receipts. The court also determined that individual issues would predominate over common ones related to whether the challenged “100% natural” and antioxidant claims in the various product advertisements and labels were material to consumers and/or whether they relied upon the alleged misrepresentations in deciding to purchase the products. The plaintiffs may decide to appeal the decision, but have not indicated that they will do so at this time.

If you or someone you know has purchased a product based upon false or misleading advertisements, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

 

July 2, 2014 / Alexis Domb

Consumers File Class Action After Getting Burned by Merck’s Coppertone SPF 55+ Products

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On June 4, 2014, San Diego woman Danika Gisvold filed a class action accusing Merck & Co. Inc. of consumer fraud (Danika Gisvold v. Merck & Co. Inc., et al., Case No. 14-cv-01371, S. D. CA.). The class action lawsuit asserts that Merck is tricking consumers into paying higher prices for its Coppertone sunscreen products with Sun Protection Factors (SPF) of 55 to 100+, even though they allegedly contain “virtually identical active ingredients as the Coppertone SPF 50 Products,” which cost less.

The class action alleges that Merck is conducting a “false, misleading, and deceptive” advertising campaign. The lawsuit also claims that “Merck has consistently conveyed the message to consumers…that the Coppertone SPF 55-100+ collection provides superior UVB protection compared to the comparable lower SPF valued products…” The class action claims that the Coppertone’s 55-100+ SPF sunscreens in fact do not offer greater sun protection.

According to the complaint, “[c]onsumers have become familiar with SPF values because they have appeared on sunscreen product labels for decades,” and “[c]onsumers have learned to associate higher SPF values with greater sun protection.” The class action stresses that consumers reasonably assume that a product with SPF 100+ provides double the sun protection as a product with 50 SPF.

The complaint alleges that the US Food and Drug Administration and other scientific studies have revealed that products with SPF values over 50 do not provide greater sun protection than SPF 50 products. Plaintiff Gisvold asserts that “none of the sunscreen products in the Coppertone SPF 55-100+ collection provide any additional clinical benefit over the Coppertone SPF 50 products.”

The class action complaint states, “As a result of Merck’s superior UVB protection claims, consumers…have purchased products that do not perform as advertised.” According to Topclassactions.com, Merck allegedly continues to claim that the Coppertone SPF 55-100+ sunscreens offer “superior UVB protection and sells the products for a premium price.”

Plaintiff Gisvold asserts that Merck has violated California’s Consumer Legal Remedies Act, Unfair Competition Law, as well as breach of express warranty.

If you or someone you know has purchased a product in reliance on misleading labeling or advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.

 

July 2, 2014 / Alexis Domb

Hydroxycut Cuts its Losses by Agreeing to Settle in Consumer Fraud Class Action

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Iovate Health Sciences USA, Inc. has recently decided to settle a class action lawsuit brought against it for allegedly making false and misleading statements in advertising and labeling its Hydroxycut dietary supplement products. (Daniel Garcia v. Iovate Health Sciences U.S.A., Inc., Case No. 1402915 ,filed with the Superior Court of the State of California, County of Santa Barbara.)

The class action argued that Iovate, in marketing its Hydroxycut products, violated California’s Consumer Legal Remedies Act, Unfair Competition Law, as well as breach of express warranty. The suit alleged that Iovate falsely advertised the efficacy of over thirty of its products, such as its Hydroxycut Weight Loss Drink Mix, Hydroxycut Green Coffee, and Hydroxycut Premium Cleanse.

As a result of the Iovate Hydroxycut Settlement, class members who bought certain Hydroxycut supplement products between July 20, 2008 and March 19, 2014 may receive refunds for their purchases if they have a purchase receipt. In addition, Iovate has agreed to a Settlement Fund of $550,000 to reimburse class members who no longer have their receipts for the price of up to two bottles of Hydroxycut purchased. The deadline for Hydroxycut purchasers to file a claim for reimbursement pursuant to the settlement is July 30, 2014. (See the Stipulation and Agreement of Settlement.)

If you or someone you know has purchased a product in reliance on misleading labeling or advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.

 

July 2, 2014 / Blake Gaines

Federal Judge Refuses to Dismiss Chocolate Mislabeling Claims Against Mars

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On June 17, 2014, U.S. District Judge Lucy Koh refused to dismiss a class action lawsuit alleging that Mars mislabeled calorie and nutrient information on M&Ms, Twix, Snickers, and Dove chocolates. The complaint attacks Mars’ advertisements that the chocolates are “natural source(s) of cocoa flavanols.”

The class representative, Phyllis Gustavson, claims to have spent over $25 dollars on these products, which purportedly violate Food & Drug Administration (FDA) requirements by using undefined terms, like “source,” and by making nutritional content claims for the nutrient flavanol without a fixed percentage of the established daily value.

Gustavson claims that the Mars chocolates in question cannot contain sufficient flavanols to meet the FDA’s requirements because the FDA has yet to establish a recommended daily value for flavanols. Mars filed a motion to dismiss, arguing that its advertisements simply inform customers that flavanols are naturally present in the chocolate, but at no specific level. Nevertheless, Judge Lucy Koh disagreed, denying Mars’ motion, stating that the term “natural source” arguably “implies that the nutrient is present in substantial quantities.”

Additionally, Gustavson claims that Mars violated FDA regulations by not including directions prompting customers to read the full nutrition information regarding the high levels of fat contained in the products located on the back of the packaging.

Gustavson also accuses Mars of not identifying “polyglycerol polyricinoleic acid” by its known name.  Mars made no efforts to challenge this claim.

If you or someone you know has been misled by nutritional representations made by Mars, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

June 10, 2014 / Blake Gaines

New Regulations Prohibit Insurance Companies from Delaying or Refusing Necessary Treatment for Individuals with Autism

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California insurance companies have denied coverage for treatment of autism with increasing regularity. In response to this serious issue, the California Department of Insurance and the Office of Administrative Law recently bolstered the Mental Health Parity Act by requiring health insurance plans cover behavioral health treatments for individuals with autism. These regulations will enable more rigorous enforcement practices and impose stricter penalties on insurance companies that delay or refuse coverage for necessary autism treatments.

Industry professionals have credited Insurance Commissioner, Dave Jones, with the recent regulatory improvements. For example, Julie Kornack, a senior public policy analyst at the Center for Autism and Related Disorders, stated “This really is making the state law and making the public policy clear. You shouldn’t underestimate that we have an insurance commissioner who is committed to the autism community and to make health plans behave. That’s not something you find in every state.”

The new regulations forbid “unreasonable” denials and delays of necessary behavioral health treatments. For example, the regulations identify “unreasonable” delays as delays due to an alleged need for IQ testing and “unreasonable” denials as encompassing refusals due to the experimental nature of certain treatments. “Unreasonable” denials also include refusals of treatment from an appropriately accredited treatment provider not specified as a doctor or one who does not have a specific license.

Furthermore, the new regulations bar insurance companies from imposing limitations on coverage for necessary treatment visits, or from instituting monetary caps on treatment unless the limit uniformly applies to an entire policy.

Multiple non-profit autism organizations, such as Autism Speaks, recognize the necessity of neurological, language and speech therapy, and occupational therapy treatments, which can decrease a variety of issues that autistic individuals face. In accordance with the recently approved regulations, if these treatments are deemed medically necessary they should be covered by health insurance plans offered in California.

Commissioner Jones believes that the recent regulatory changes “will help end improper insurer delays and denials of medically necessary treatments for autistic individuals.” Additionally, the Commissioner stated, “This regulation provides clear guidance to the industry, stakeholders and consumers on the requirements of the Mental Health Parity Act.”

If you or someone you know has been denied coverage for necessary autism treatment forApplied Behavioral Analysis (ABA), speech therapy, or occupational therapy, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

 

June 5, 2014 / Alexis Domb

The Skinny on Laci Le Beau Diet Tea: California Federal Court Allows Consumer Class Action to Proceed

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On May 14, 2014, a California federal judge declined to dismiss a putative class action against Natrol Products, Inc.—a nutritional supplement company—alleging that advertising of its Laci Le Beau Super Dieter’s Tea as a weight loss aid designed to support reduction of excess body fat and accumulated toxins is false and misleading.

Augustine filed her class action complaint in December 2013 (Augustine et al v. Natrol Products, Inc., Case No. 13-cv003129, S. D. CA.), alleging false advertising and labeling of the Dieter’s Tea. The class action claims that the product’s marketing is “false or deceptive” and that regular use of the product is not only ineffective for weight loss and appetite suppression, but can actually cause dependence on stimulant laxatives and serious health problems.

According to the complaint, the tea’s main ingredient, Senna, is “an herbal laxative that does not assist in weight loss and actually causes chronic bloating and constipation.” As confirmed by the National Institute of Health, Senna is not safe for long-term use, despite that Natrol’s packaging encourages regular use as part of a “lifestyle.” The class action suit claims studies reveal that regular consumption of Senna has been tied to health dangers, such as toxicity, hepatitis, liver failure, arthritis and finger “clubbing,” laxative dependency, and even cancer.

In the recent motion to dismiss, Natrol argued to the court that Augustine’s claims were too vague and that the statements on the tea’s packaging are not likely to deceive consumers, but merely contained nonactionable puffery. The court rejected this argument concluding that a reasonable consumer may be deceived by the statements on the tea’s packaging. The court has allowed the case to move forward, giving Augustine a chance to pursue her claims against Natrol on behalf of herself and others who purchased the Dieter’s Tea.

If you or someone you know has purchased a product in reliance on misleading labeling or advertising, you may be entitled to relief. Please contact Khorrami Boucher, LLP for a confidential consultation.

 

 

May 13, 2014 / Scott Tillett

“Death Wobble” Class Action Filed Against Chrysler for Dodge Ram Steering System Defects

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In a class action filed in California federal court, five consumers who purchased Dodge Ram vehicles from dealerships located in California, Texas, and Utah sued Chrysler Group, LLC for defective steering system components found in certain Dodge Ram vehicles manufactured between February 14, 2008 and January 21, 2012. The defect at issue concerns the failure of tie rods in the steering linkage system of these vehicles, which can cause unexpected loss of steering control at high speeds, termed a “death wobble.”

According to the complaint, Chrysler became aware of the defective tie rods shortly after releasing the 2008 model year Dodge Rams, but “opted to conceal the existence of the Defect from Plaintiffs and the general public.” After a January 2011 recall of model year 2008-2011 4500/5500 vehicles and a National Highway Traffic Safety Administration investigation leading to the expansion of that recall to 2008-2011 Dodge Ram 2500/3500 vehicles in August 2011, the problem still was not remedied and tie rod defects continued to occur in several vehicles.

In October to December 2013, Chrysler issued a recall of 2008-2012 Dodge Ram 2500/3500/4500/5500 vehicles, again citing safety issues related to steering tie rod fractures. Despite promising to repair vehicles free of charge, Chrysler conceded that “the parts required to provide a permanent remedy for this condition are currently not available.” Chrysler then allegedly secretly advised dealers of “an order restriction on the parts needed for the recalls,” and that the parts were not expected to be available until April 14, 2014, after “recertifying the part and developing a new part number,” and then only in “limited quantities.”

The plaintiffs filed their class action on behalf of all persons within the US who purchased or leased model year 2008 to 2012 Dodge Ram 2500 4×4, 3500 4×4, 3500 Chassis Cab 4×2 or 4500/5500 4×4 vehicles in the United States on or after June 10, 2009. The complaint seeks actual and consequential damages, rescission, restitution and disgorgement of profits, injunctive relief, and attorneys’ fees for Chrysler’s alleged violations of the Magnuson-Moss Warranty Act, various State warranty statutes, California’s Consumer Legal Remedies Act, California’s Unfair Competition Law, and other causes of action.    

If you or someone you know has purchased an unsafe product or been involved in an accident, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

May 6, 2014 / Scott Tillett

California Court Certifies Consumer Class Action Against Twinings Tea for Labeling Violations

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On April 24, 2014, a California federal court certified a consumer class action against Twinings North America Inc., makers of Twinings tea products. Plaintiff, Nancy Lanovaz filed the class action in 2012 claiming that Twinings falsely advertised the health benefits of antioxidants in its teas.

According to the complaint, Twinings violated FDA regulations against nutrient content claims about flavanoids, a type of antioxidant, because the FDA has not established a recommended daily intake for flavanoids. The FDA has published industry guidelines for food labeling, which state:

“Can I make an antioxidant nutrient content claim for any ingredient in a food? No. An antioxidant nutrient content claim can only be made for nutrients for which there is an RDI established in 21 CFR 101.9 (21 CFR 101.54(g)(1)).”

The complaint cites an FDA warning letter sent to Unilever, the maker of Lipton teas, for similar claims of antioxidant content on its tea labels. The warning letter sparked a class action against Unilever for misbranding and misleading labeling practices, including claims that flavanoids in Lipton teas are “generally associated with helping maintain normal, healthy heart function,” and “may help maintain healthy vascular function.”

Lanovaz’s complaint sought monetary and injunctive relief against Twinings on behalf of California “All persons in the State of California who, since May 23, 2008, purchased Defendant’s green, black and white tea products,” for alleged violation of California’s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. However, the court limited the remedies available to injunctive relief, holding that Lanovaz was unable to demonstrate that consumers paid more money for Twinings’ tea products than they would have absent the allegedly misleading statements. This means that Twinings may be required to change its product labels, but will not be required to refund or reimburse consumers for tea purchases.

If you or someone you know has purchased a falsely advertised or mislabeled product, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

April 29, 2014 / Scott Tillett

US Supreme Court Food Labeling Decision May Aid California Consumer Protection Class Actions

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On April 21, 2014, the U.S. Supreme Court heard an argument in POM Wonderful LLC v. Coca-Cola Co. The lawsuit by POM Wonderful alleges Coca-Cola mislabeled its Minute Maid Pomegranate Blueberry juice blend, engaging in unfair competition. POM argued that Coca-Cola had violated the Lanham Act by labeling its product “Pomegranate Blueberry,” despite the product consisting of approximately 99% apple and grape juice, and only 0.3% pomegranate juice and 0.2% blueberry juice.

POM argued that consumers were likely to be deceived by Coca-Cola’s labels, which prominently read “Pomegranate Blueberry,” stating “Flavored Blend of 5 juices” in much smaller font. POM contends that consumers will purchase the less expensive of the two products if they believed they are the same, as Coca-Cola’s labeling suggests. This seems like a fairly straight-forward argument, but both the California federal court and the Ninth Circuit Court of Appeals held that the Coca-Cola product’s name and labeling complied with FDA regulations designed to prevent deceptive labeling and that POM’s claims under the Lanham Act may not “usurp, preempt or undermine FDA authority.”

The U.S. Supreme Court did not agree. The Supreme Court has not issued its ruling yet, but according to  SCOTUSblog, we can expect a unanimous reversal of the Ninth Circuit ruling. Apparently, Justice Kennedy slammed Coca-Cola’s arguments that federal labeling laws were designed to promote uniformity, protecting companies like Coca-Cola from unfair competition laws, even for product “labels that cheat the consumers like this one did.” Justice Kennedy went on to say “I think it’s relevant for us to ask whether people are cheated in buying the product. Because Coca-Cola’s position is to say even if they are, there’s nothing we can do about it.” Chief Justice Roberts seemed to agree, stating a “label that fully complies with the FDA regulations” could also be “misleading on the entirely different question of commercial competition… that has nothing to do with health.”

While this lawsuit focuses on competing federal statutes, the Food Drug and Cosmetic Act and the Lanham Act, the outcome will doubtless affect consumer protection class actions brought under State law as California’s consumer protection statutes contain prohibitions similar to the “likelihood of confusion” language contained in the Lanham Act.

If you or someone you know has purchased a falsely advertised or mislabeled product, you may be entitled to relief. Please call Khorrami Boucher, LLP for a confidential consultation.

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