Litigation Project - Current Docket
CRYSTAL LIGHT CSPI's litigation department sent a letter to Kraft Foods, concerning its Crystal Light line of "Natural" lemonade and iced tea mixes. The products contain several decidedly unnatural ingredients, including the artificial sweeteners aspartame and acesulfame-potassium, artificial colors such as Red 40, Yellow 5, and Blue 1, the factory-produced texturizer maltodextrin, and the controversial synthetic preservative butylated hydroxyanisole, or BHA.
This misleading "natural" claim is in violation of state consumer protection laws. CSPI has notified Kraft Foods that it will be sued if it continues to use the word "natural" in connection with its Natural Lemonade, Natural Pink Lemonade, Natural Lemon Iced Tea, and Natural Lemon Decaffeinated Iced Tea.
ENSURE NUTRITION SHAKES CSPI's litigation department sent a letter instructing Abbot Laboratories that it will face a lawsuit if it continues to make deceptive and illegal claims in connection with its Ensure Complete Nutrition Shake and Ensure Muscle Health Shake. Abbott misleadingly markets these shakes to the general public as a twice daily "habit that could help you feel better," and as "part of a healthy diet," despite the fact that they are made mostly of water, sugar, and corn maltodextrin, and contain between 250 and 350 calories. Abbott also misleads consumers about the omega-3 content of these products and makes illegal and unauthorized health claims and disease prevention claims.
These misleading claims are in violation of state consumer protection laws. CSPI has notified Abbott Laboratories that unless the company ceases it’s misleading marketing tactics and unsubstantiated health and disease prevention claims in connection with Ensure Complete Nutrition Shake and Ensure Muscle Health Shake, CSPI will pursue class action litigation.
VITAMINWATER. CSPI's litigation department is serving as co-counsel in this class action lawsuit, now pending in United States District Court for the Eastern District of New York. Under the name Glaceau, Coca-Cola markets vitaminwater as a healthful alternative to soda by labeling its several flavors with such health buzz words as "defense," "rescue," "energy," and "endurance." The company makes a wide range of dramatic claims, including that its drinks reduce the risk of chronic disease, reduce the risk of eye disease, promote healthy joints, and support optimal immune function. In fact, the 33 grams of sugar in each bottle of vitaminwater do more to promote obesity, diabetes, and other health problems than the vitamins in the drinks do to perform the advertised benefits listed on the bottles. Despite the full names of the drinks, such as "endurance peach mango" and "focus kiwi strawberry," vitaminwater contains between zero and one percent juice.
Coca-Cola filed a motion to dismiss the case, but the request was denied. The judge ruled that the company's use of the word "healthy" violates the Food and Drug Administration's regulations on vitamin-fortified foods. The FDA's so-called "Jelly Bean" rule prohibits companies from making health claims on junk foods that only meet various nutrient thresholds via fortification.
The judge also said the FDA discourages names of products that mention some ingredients but exclude more prominent ingredients such as, in the case of vitaminwater, added sugar. The names of the drinks, along with other statements on the label, "have the potential to reinforce a consumer's mistaken belief that the product is comprised of only vitamins and water," the judge wrote.
On July 18, 2013, United States Magistrate Judge Robert M. Levy recommended to the District Court in New York that the suit proceed as a class action and the court allow plaintiffs to litigate for declaratory and injunctive relief, but not for damages.
BAYER HEALTHCARE CSPI's litigation department sent a letter to Bayer Healthcare concerning its One A Day line of dietary supplements. Labels and advertising for One A Day multivitamins make unsubstantiated and illegal claims that the supplements "support" breast, heart, eye, and joint health, as well as physical energy, immunity, healthy blood pressure, bone strength, and metabolism.
These misleading claims are in violation of state consumer protection laws. CSPI has notified Bayer Healthcare that unless the drug company stops advertising unsubstantiated health benefits in connection with One A Day products, CSPI will pursue class action litigation.
CAMPBELL SOUP CSPI's litigation department has sent a letter to Campbell Soup Company threatening to sue if it does not stop making misleading statements about the juice content, nutritional value and overall healthfulness of its extended juice lines. Campbell's deceptively markets its V8 Splash and V8 V-Fusion Refreshers line of products with names and labels that are strikingly similar to its V8 V-Fusion 100% juice drink line, despite the fact that V8 V-Fusion Refreshers only contain 20 to 25 percent juice, and V8 Splash drinks only contain between five and 10 percent juice. The latter drinks also include artificial food dyes, high-fructose corn syrup, and sometimes artificial sweeteners such as sucralose or acesulfame potassium. Despite the vastly different nutritional content of these juice drinks, all the labels depict fresh fruits and vegetables and boast about the drinks' antioxidant content.
In addition, the company makes claims that its V-Fusion line has "no added sugar" when the V-Fusion Refreshers do contain added sugar. And statements related to V8 Splash's antioxidant content mislead consumers into assuming that the vitamins in drinks labeled as "an excellent source of vitamins A and C" come from the fruits and vegetables pictured on the label when, in reality, much of the vitamins are added through fortification. FDA regulations prohibit the artificial fortification of nutritionally void beverages—and V8 Splash has more high-fructose corn syrup than fruit or vegetable juice concentrates.
Products like V8 Splash and V8 V Fusion Refreshers are designed to simulate 100% juice drinks. The deceptive marketing and misleading labels are designed to confuse consumers about nutritional quality of the products and therefore violate federal law.
WELCH FOODS, INC. CSPI's litigation team has written a letter to Welch Foods, Inc., notifying the company that it will face a lawsuit unless it stops making heart-health claims on its juices, spreads, fruit juice cocktails, and fruit snacks. The letter invites Welch's to resolve the issues it raises without litigation but says that if Welch's does not respond, CSPI will pursue litigation. Welch's relies on the presence of polyphenols and vitamin C in grape juice to justify its statement, often placed inside a red heart shape, that the juice "helps support a Healthy Heart." Welch's encourages consumers to drink juice in lieu of eating fresh fruit, stating that "Getting enough fruits and vegetables each day is important for overall health—but everyday life often gets in the way … Welch's 100% Grape Juice makes it easy to squeeze in more purple fruit each day as part of a healthy diet for the whole family." However, the effects of too much sugar and too many calories negate any possible health benefits from Welch's products. "Most Americans concerned about their weight and risk of diabetes would actually do well to drink less juice," said CSPI executive director Michael F. Jacobson. "It's deceptive and misleading for Welch's to claim that grape juice has any special benefit to heart health." CSPI's letter also addresses labels for Welch's Berries 'n Cherries Fruit Snacks which state "Reward Your Heart" "On the ingredients list, fruit purees come after all of these unhealthful and non-nutritious ingredients," CSPI's letter states. The products also have no fiber, which is present in real fruit, and artificial food dyes, which are not. "It takes a heroic amount of chutzpah to tell consumers that these fruit snack candies will reward anyone's heart," said CSPI litigation director Steve Gardner. 8/12
JOHNSON & JOHNSON and MCNEIL NUTRITIONALS CSPI's litigation team, on behalf of three California consumers, has filed a class-action lawsuit in the U.S. District Court for Northern California against McNeil Nutritionals, the Johnson & Johnson subsidiary, for its Splenda Essentials product line. Splenda Essentials is a higher-priced line of the no-calorie artificial sweetener sucralose that is fortified either with B vitamins, antioxidants, or fiber. CSPI alleges that the fortifications "are designed to give the impression that Splenda Essentials will help one lose weight, avoid disease, or confer other health benefits." In fact, an online survey found that up to 68 percent of 1,014 respondents formed incorrect perceptions of Splenda Essentials' potential benefits after being exposed to packaging or advertisements for each of the products. CSPI contends that the products' labeling and marketing are in violation of California's consumer protection laws. "It's ridiculous—but apparently profitable—to claim that bulking up Splenda with vitamins or powdered fiber is going to make it a magical health food," said Michael F. Jacobson, executive director of CSPI. "It's an artificial sweetener, not pixie dust." The lawsuit seeks restitution to consumers and disgorgement of profits from the product line, as well as injunctive relief prohibiting the company from "continuing its deceptive labeling and marketing." 8/12
Johnson & Johnson and McNeil Nutritionals filed a motion to dismiss the lawsuit, but the Court rejected the motion and the case is proceeding. 6/13
GENERAL MILLS CSPI's litigation department is taking Nature Valley to court for its deceptive labeling and marketing practices. Nature Valley goes to great length to market its granola bars and "thins" as "natural," even though they contain industrially produced artificial ingredients such as high-fructose corn syrup, high-maltose corn syrup, and maltodextrin. "High maltose corn syrup and maltodextrin are highly processed, do not exist in nature, and not even under the most elastic possible definition could they be considered 'natural,'" said Michael F. Jacobson, executive director of the Center for Science in the Public Interest. The lawsuit was filed in United States District Court in the Northern District of California, on behalf of McKendrick and another California woman, both of whom sought out natural products on medical advice. The suit says Nature Valley's labeling and advertising is in violation of several California consumer protection laws, including the California Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law. 7/12
General Mills filed a motion to dismiss the lawsuit, but the Court rejected the motion and the case is proceeding. 6/13
SUPERBUG LAWSUIT In 2011, CSPI (along with Public Citizen, Food Animal Concerns Trust, and Union of Concerned Scientists, Inc.) joined the Natural Resources Defense Council in filing a lawsuit against the Food and Drug Administration in order to compel FDA to address the egregious overuse of antibiotics in animal feed.
The livestock industry feeds antibiotics to healthy animals in order to promote rapid growth. In fact, over 70% of all antimicrobial drugs used in the US are fed to healthy animals. 35 years ago, FDA proposed banning the use of certain antibiotics in animal feed because of human health concerns but the agency never took any further action. For the following decades, however, FDA has not taken action, thus turning a blind eye to the reckless non-therapeutic overuse of medically important antibiotics like penicillin and tetracycline on animal farms. Meanwhile, mounting evidence has shown that the overuse of drugs in animal feed has led to the development of antibiotic-resistant bacteria that is transferred from animals to humans, putting public health in danger.
On March 22, 2012, Judge Theodore Katz agreed with our position and ordered the FDA to begin proceedings to remove two important drugs (penicillin and tetracyclines) from animal feed. This is an important victory for public health. It is a big step toward preserving the effectiveness of medically important antibiotics.
Only two months after the federal court decision requiring FDA to withdraw approval for the use of penicillin and tetracyclines in animal feed unless drug manufacturers proved that such uses are safe, comes another win for public health. On June 4, 2012, the Judge resolved the second claim in the lawsuit by, again, ordering the FDA to take action to prevent the overuse of antibiotics in animal feed. The federal court instructed the FDA to reconsider its decision to deny two citizen petitions (submitted in 1999 and 2005) which urge the agency to revoke approvals for all non-therapeutic uses of antibiotics in livestock production. According to the Court the FDA must "evaluate the safety risks of the petitioned drugs and either make the finding that the drugs are not shown to be safe or provide a reasoned explanation as to why the Agency is refusing to make such a finding."
The FDA has appealed the March decision. 6/12
AMWAY NUTRILITE CSPI's litigation department has sent a letter to Amway concerning its Nutrilite line of dietary supplements. CSPI warns the multi-level marketing company that its labeling and advertising for Nutrilite products violates federal regulations and state consumer protection laws and that CSPI will pursue class action litigation unless Amway stops advertising unsubstantiated nutrition and health benefits in connection with Nutrilite products.
Labels for Nutrilite "fruit & vegetables 2GO Twist Tubes" claim that the product contains two servings of fruit and vegetables. The fine print clarifies that a serving contains "the antioxidant equivalent of 2 servings." The Twist Tubes do not come close to providing the same benefits that real fruit and vegetables provide.
Nutrilite "Immunity" Twist Tubes present a similar problem. Amway claims that the product is an "immune system booster" that will "protect your cells." This is an unlawful claim that implies the product will prevent disease. 02/12
As part of a settlement agreement with CSPI, Amway agreed to address misleading fruit and vegetable content and disease prevention claims regarding its Nutrilite products by changing product labels by the end of 2014.
KELLOGG/ KASHI Kellogg's brand Kashi has cultivated a healthy and socially conscious image for itself by misleading consumers about the ingredients in its products.
CSPI's litigation department is serving as co-counsel in a class action lawsuit against Kellogg's Kashi for false and misleading labeling of its "all natural" products.
Kashi product labels prominently boast that these products are "all natural" and "nothing artificial" when the products contain unnaturally processed ingredients and synthetic ingredients including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niaciamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine hydrochloride, and potassium iodide. In fact, many Kashi products contain unnaturally processed and synthetic ingredients as their primary ingredients. 08/11
SAFEWAY. The sale of tainted food products to consumers who have no way of knowing the risk is one of the greatest food safety problems in the country today. Many chain stores — including Costco, Giant, Harris Teeter, Price Chopper, Sam's Club, ShopRite, and Wegman's — use their customer card programs (or membership cards) to contact people who bought contaminated food.
Even though it collects phone numbers and email addresses from its Club Card members, Safeway doesn't do the same thing. In 2009, as thousands of peanut-containing products tainted with deadly Salmonella bacteria were being recalled, many other chains sent letters or automated phone calls out to people who bought those foods. Safeway did nothing during that recall or many other recalls.
On May 6, 2010, CSPI notified Safeway that CSPI will file a lawsuit against the grocery chain if it fails to adopt a policy to notify Club Card members who purchased contaminated food subject to recalls.
In response to that letter, instead of making any commitment to notify shoppers, Safeway instead threatened to sue CSPI for libel. CSPI has advised Safeway that, as a policy matter, we will not discuss resolution of a libel threat.
"It shocks the conscience that a major retailer would sit on its hands, even though it has easy access to the emails, addresses, and phone numbers of those who have purchased food that might be contaminated," said CSPI litigation director Steve Gardner. "Perhaps Safeway saves a few pennies by remaining silent. But why would you knowingly risk letting your customers fall ill, or worse, die?"
With the help of CSPI, Dee Hensley-Maclean of Ravalli County, MT, and Jennifer Rosen of San Francisco, CA, filed a complaint in California Superior Court for not being notified about buying a recalled product. The women ask that they and others who bought recalled food be refunded the price of those purchases, and that Safeway commit to using its Club card data to contact consumers in the event of future recalls.
Safeway has removed the case to federal court where we will proceed. 5/11
Safeway's Motion to Dismiss was rejected by the court and the case is proceeding. 8/11
In April 2014, the district court denied Safeway’s motion for summary judgment, finding that Safeway had failed to show that it was entitled to an exception from the standard duty of care to notify its customers after a recall. 4/14