Litigation Project - Current Docket
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.
DR PEPPER SNAPPLE GROUP CSPI's litigation department is acting as co-counsel in a lawsuit filed against 7UP manufacturer Dr Pepper Snapple Group over antioxidant claims the company is making on its regular, diet Cherry Antioxidant, Mixed Berry Antioxidant, and Pomegranate Antioxidant 7UP varieties. The labels of these 7UP soda varieties depict pictures of cherries, blackberries, cranberries, raspberries and pomegranates while the 7UP web site claims "There's never been a more delicious way to cherry pick your antioxidant!" Despite the pictures of fruit on the labels, the drinks contain no fruit juice of any kind and are fortified with only a small amount of one isolated antioxidant, vitamin E acetate or d-alpha tocopherol. The antioxidant claims on 7UP varieties are misleading to consumers because they give the impression that beneficial antioxidants are provided by the addition of healthy fruit juices from the fruit depicted on the label. The claims are also illegal because they violate FDA regulations that prohibit the fortification of nutritionally worthless junk food. "Non-diet varieties of 7UP, like other sugary drinks, promote obesity, diabetes, tooth decay, and other serious health problems, and no amount of antioxidants could begin to reduce those risks," said CSPI executive director, Michael Jacobson. "Adding an antioxidant to soda is like adding menthol to a cigarette—neither does anything to make an unhealthy product healthy." 11/12
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
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
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
PEPSICO NAKED JUICE. CSPI's litigation department is acting as co-counsel in a class action lawsuit against PepsiCo, on behalf of consumers who purchased Naked Juice products that were falsely and misleadingly labeled as 100% Juice 100% Fruit "ALL NATURAL" suggesting that the beverages' vitamin content is due to the nutritious fruits and juices, rather than the added synthetic compounds such as calcium pantothenate (synthetically produced from formaldehyde).
The lawsuit seeks compensatory and punitive damages as well as an injunction against Naked Juice preventing the company from advertising its products as 100% juice and all-natural, when they are not. 09/11
- Naked Juice products were falsely and misleadingly labeled as natural but actually contained unnatural ingredients.
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
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.
The case is continuing in Federal Court in New York 10/11
AURORA DAIRY. In 2007, CSPI joined a lawsuit in California against Aurora Dairy, the second-largest organic milk company. Aurora produced non-organic dairy products that it sold as "organic." Consumers pay premium prices for organic products, but in this case—due to the illegal behavior of Aurora—they were ripped off. Aurora's practices violated both federal and California consumer protection and organic laws. However, a federal judge has ruled that these consumers' rights are "preempted" by federal law — that is, that the defendants did not have to comply with state consumer protection laws. This decision was reversed on appeal, and the case is proceeding in federal district court in St. Louis.