Yogurt: A Cash Crop for Lawyers?

As discussed in July of this year, food labeling litigation is a fast growing area of the law. One of the most litigated food items during this growth is yogurt, often over the use of the term “evaporated cane juice.” Here is a look at some of the yogurt cases seen in the past year:

December, 2012 (Taradejna v General Mills, Inc.) The U.S. District Court for the District of Minnesota determined that the FDA must resolve ambiguity regarding the standard of identity for yogurt because the questions require scientific and nutritional expertise. The case began when a consumer alleged that Yoplait made Greek yogurt that did not comply with the FDA’s yogurt standards. The case was dismissed.

February, 2013 (Smith v Cabot Creamery Cooperative, Inc.) The U.S. District Court for the Northern District of California determined that a Greek yogurt manufacturer that used whey protein concentrate and milk protein concentrate to create Greek yogurt’s signature thick texture was not adulteration or misbranding. The consumer alleged that the inclusion of these ingredients, rather than achieving the thick texture through the fermentation process and separation, violated the federal Food, Drug and Cosmetic Act. The case was dismissed.

July, 2013 (Hood v Wholesoy & Co.) The U.S. District Court for the Northern District of California dismissed a case in order to defer to the FDA’s authority and expertise under the doctrine of primary jurisdiction. A class of consumers alleged that a soy yogurt manufacturer’s label did not meet requirements of the federal Food, Drug and Cosmetic Act because: (1) the labeling listed “organic evaporated cane juice” instead of “sugar” or “dried cane syrup” as an ingredient; and (2) the products failed to comply to with the FDA standard of identity for yogurt under 21 C.F.R. sec. 131.200 because no form of milk was present. The case was dismissed without prejudice.

July, 2013 (Kane v Chobani) The U.S. District Court for the Northenrn District of California denied a motion for preliminary injunction that would have enjoined a yogurt manufacturer from selling, advertising or distributing Chobani Greek Yogurt products. The class of consumers alleged that various Chobani products were misbranded and mislabeled with “evaporated cane juice”, in violation of California and federal law. The court found there was no irreprable harm present and denied the injunction. After further litigation the case was dismissed in September of 2013.

October, 2013 (Gitson v Trader Joe’s Company) The U.S. District Court for the Northern District of California held that a class of consumer’s allegations over yogurt labels was sufficient to show a plausible violation of California’s Sherman Law, but did not provide sufficient basis of fraud.  The consumer’s pled that the yogurt (and other products) purchased were : (1)  labeled with the ingredient “evaporated cane juice” instead of sugar; (2) contain added preservatives or artificial colors despite the label stating ”No Additives;” and (3) are labeled “soy milk,” but do not comply with the FDA’s definition of milk. Only the claims of fraud were dismissed.

October, 2013 (Morgan v Wallaby Yogurt Company, Inc.) The U.S. District Court for the Northern District of California gave a class of consumers leave to amend their complaint which alleged that 17 types of yogurt were labeled with “evaporated cane juice” rather than “sugar” or “dried cane syrup.” The consumers alleged that this labeling was contradictory to the FDA guidance letter to the industry, but the court found that the consumer’s did not properly plead all prongs of the state law’s relied on to bring the suit.

Yogurt is no stranger to ligitation- in 2010 Dannon paid $45 million to settle claims that the manufacturer made health claims without scientific evidence. In 2013, General Mills settled a similar case for $8.5 million. With $1.5 billion in annual US sales for Greek yogurt alone, it unlikely to see the product or its lawsuits fading away anytime soon.