Stay ADvised: What's New This Week, June 14
In This Issue:
- Class Action Claims Anti-COVID Air Purifier Marketing Just a Bunch of Hot Air
- DOJ Has No Affinity for Misbranded Bottled Water That Sickened Kids
- Class Action Says Dove Deodorant "Stain Defense" Claims Are the Pits
- Hain Celestial Group Asks Court to Avoid Industrywide MDL
- Judge Skims Class Action Claiming Sargento Cheese Is Up to No Gouda
Class Action Claims Anti-COVID Air Purifier Marketing Just a Bunch of Hot Air
A recent class action complaint accuses the manufacturer of widely used air purifying systems of "prey[ing] on people desperate to protect themselves from ailments including the COVID-19 virus" by misrepresenting that their product could eliminate the virus from the air. The suit asserts causes of action for violations of various state consumer protection statutes, fraudulent concealment, breach of express and implied warranties, and unjust enrichment.
The voluminous 111 page Delaware complaint filed on May 7, 2021, in the U.S. District Court for the District of Delaware accuses Global Plasma Solutions (GPS) of misrepresenting its purported study data and putting "profits over people" in marketing its product. The suit alleges that GPS sought to capitalize on pandemic-related health concerns by marketing its Needlepoint Bipolar Ionization Technology (NPBI) air purification system as effective at eliminating the COVID-19 virus from the air, and claiming its product did not add harmful byproducts, when the company knew that was not the case.
The plaintiff, who bought a GPS system, alleges that in order to make "dollars from COVID-19 fear" in the hot pandemic market for air purifiers, GPS ran a "coordinated" marketing campaign that misrepresented the safety and efficacy of its products. In this marketing campaign, GPS touted the superior effectiveness of its NPBI air purification system at cleaning the air and eliminating harmful volatile organic compounds (VOCs) and toxins that included COVID-19. According to the complaint, GPS claimed that its product rendered a 98.33 percent reduction in COVID-19 within 60 minutes.
The complaint also avers that starting in the early days of the pandemic, GPS used its misrepresentations as an opportunity to enrich itself knowing full well the public hunger for air purifying products. Indeed, says plaintiff, two days after the World Health Organization labeled COVID-19 a pandemic, the company issued a press release entitled "Indoor Air Quality Technology Company Responds to Coronavirus," what plaintiff calls a "flag planting moment."
In fact, GPS "overstated" the efficacy of its products' ability to eliminate COVID-19, alleges plaintiff. Relying on a slew of scientific experts, plaintiff contends that "top engineering and environmental experts" concluded that GPS's NPBI technology and the company's testing methods did not support its "lofty representations" and that in "real world application, ionization is not effective against COVID-19 transmission." Even the National Air Filtration Association finds no "direct scientific evidence of benefit" in filters that claim to remove COVID-19, the complaint states.
The suit goes on to challenge GPS's alleged misrepresentations regarding the studies that GPS relied upon, claiming they were company-funded studies that lacked independence. The plaintiff claims the studies were conducted "under conditions that were not representative" of real world conditions, and when the products were studied independently, as when Boeing tested the NPBI technology on its planes, those studies found the system "inconclusive as a methodology for deployment" during the pandemic. Plaintiff also challenges GPS's claims to superiority over other air treatment systems, claiming the company's products are not only inferior, but that they actually put harmful chemicals such as acetone and ethanol into the air as a byproduct.
GPS has denied all claims asserted in the lawsuit and recently filed a motion to dismiss the complaint, claiming that the lawsuit was an "attempt to distort the facts and assert baseless claims, doing grave damage to GPS's business in the process." GPS further claimed that the disclaimers on its website "make it unreasonable for any consumers to believe that the efficacy demonstrated in GPS studies will necessarily be the same for their particular application." It also asserts that most of the GPS statements identified in the plaintiff's lawsuit—such as "safe to use" and "cleaner air"—amount to "non-actionable puffery" as they are "vague generalities and statements of opinion."
This action, and the fallout from it, will be watched closely by government clients, universities, houses of worship, and schools across the United States that purchased and installed GPS's system. There has already been reaction by some institutions, including a school district in Newark, Calif., that turned off its GPS units after spending nearly $360,000 on the devices.
DOJ Has No Affinity for Misbranded Bottled Water That Sickened Kids
A pair of Nevada companies accused by the Department of Justice (DOJ) and the Food and Drug Administration (FDA) of misbranding their bottled water products have entered into a consent decree with the DOJ permanently enjoining them from selling adulterated bottled water and violating the Federal Food, Drug, and Cosmetic Act (FDCA).
AffinityLifestyles.com and Real Water sold bottled drinking water under the name "Re2al Water Drinking Water" and "Re2al Alkalized Water." The companies marketed the water as a healthy, clean alternative to tap water—but there was apparently nothing "Re2al" about those claims, said the DOJ.
According to a federal complaint filed by the DOJ at the request of the FDA, the water was actually made of municipal tap water that the companies ran through a filtration process and what they called a proprietary "ionizer" claimed to "create positively-charged and negatively-charged solutions." Proprietary or not, Affinity and Real Water are alleged to not have followed required manufacturing protocols, which led to consumers becoming sickened after drinking the water.
The wrongdoing came to the forefront of the FDA's attention after five children experienced acute liver failure related to non-viral hepatitis caused by drinking Re2al Water. It turned out that not only was the water not "clean" or "healthy," but it was processed with chemicals that rendered it "in violation of good manufacturing practices, relevant food safety standards, and hazard prevention methods."
According to the complaint, the company misbranded the water under the FDCA by failing to label a number of these chemical ingredients, among them potassium hydroxide, potassium bicarbonate, and magnesium chloride. The consent order enjoins the companies from preparing, processing, or distributing any misbranded or adulterated bottled water and places responsibility for the misbranding on the defendant companies.
In this issue, we also cover lawsuits against baby food companies alleged to be selling products containing heavy metals and the Congressional report that blew the lid on these allegations. In the case of Affinity and Real Water, it appears the chemicals in the bottled water were far more immediately dangerous than those allegedly contained in baby food—given how badly and quickly they sickened children. But the baseline allegations have some similarity: chemicals found in premium food products marketed as healthy that turn out to be not so squeaky clean.
Class Action Says Dove Deodorant "Stain Defense" Claims Are the Pits
A proposed class action lawsuit claims Unilever falsely advertised that its Dove men's deodorant "Stain Defense" prevents yellow armpit stains when the product actually has the opposite effect. Unilever claims its Dove line of antiperspirants prevents clothing stains resulting from perspiration, but plaintiffs allege that in fact the product's main ingredient actually causes yellow stains.
Filed in a Missouri state court, the lawsuit avers that Unilever knowingly advertises its "Stain Defense" products as anti-stains and marks, despite the fact that it contains an ingredient which plaintiffs repeatedly claim is "scientifically known" to cause yellow stains. Plaintiffs allege violations of the state's consumer protection act, Missouri's Merchandising Practices Act (MMPA), breach of warranties, and unjust enrichment.
According to the complaint, Unilever sells a line of Dove men's deodorants that it labels as "Anti-Yellow Stains." Rather than offering qualified or comparative claims against the effectiveness of other "regular" antiperspirant products, the complaint alleges that Unilever markets its product as having the unqualified ability to protect clothing against "yellow stains" and "white marks."
The crux of plaintiffs' argument is that the deodorant contains the ingredient "Aluminum Zirconium Tetrachlorohydrex." Plaintiffs claim it is "scientifically well established that aluminum in some antiperspirants causes white marks and stains."
Additionally, plaintiffs allege that the deodorant does not contain any of the ingredients found in other deodorants on the market which are "legitimately" marketed as stain-fighting. Plaintiffs also claim that there is virtually no difference between the "Stain Defense" deodorant and other "regular" deodorants on the market, save for a somewhat smaller percentage of the offending active ingredient—a difference plaintiffs claim makes no difference but only "more likely reduces the effectiveness of the 'normal' product."
Finally, plaintiffs argue that "a normal consumer is unaware that Aluminum Zirconium… is a key factor (along with a person's perspiration) that contributes to and, at least indirectly, causes the 'yellow stains' and 'white marks' the product purports to 'protect' against and/or be 'anti' toward." In other words, according to plaintiffs, a reasonable person would not know that the aluminum contained in the deodorant could be a direct cause of stains, and thereby would be misled by the marketing.
Compared to contaminated water, yellow armpit stains may seem like a mere annoyance, and yet who among us has not bemoaned the loss of a favorite crisp white shirt to the armpit stains of time? The lawsuit may well hinge on whether the "normal" person would know that aluminum causes yellow stains, if plaintiff's allegations are correct.
Hain Celestial Group Asks Court to Avoid Industrywide MDL
Hain Celestial Group, one of several baby food manufacturers recently sued for alleged false advertising and product liability, has joined forces with plaintiff-parents to request that the Judicial Panel on Multidistrict Litigation (MDL) refrain from creating an industrywide MDL.
Hain, the maker of Earth's Best foods, has been hit with multiple class actions alleging that the company falsely labels and markets its baby food as suitable for babies, safe, "the best food for your children," and "made with pure ingredients…and without the use of potentially harmful pesticides." These suits allege that Hain failed to divulge that its products contain toxic metals that render all these claims false.
The Hain suits join similar claims filed against other baby food manufacturers—including Gerber, Plum Organics, HappyBaby, and more—all alleging in some form or another that these companies manufacture and sell baby products containing toxic heavy metals. The complaint goes on to state that such toxins include lead and cadmium, that these toxins are especially harmful to babies and children, and that the manufacturers misrepresent the health and safety of their products in their marketing.
The flurry of lawsuits follow a Congressional report published in February 2021 by the Subcommittee on Economic and Consumer Policy and the Committee on Oversight and Reform. The report highlighted significant levels of toxic heavy chemicals, including arsenic, lead, cadmium and mercury, contained in various baby food brands, including Hain's "Earth's Best."
The report found that these baby food brands contained levels of these toxic metals at levels the Food and Drug Administration (FDA) and the World Health Organization (WHO) consider "dangerous to human health." The report also found that Hain and other companies knew that the baby products contained more toxic metals than considered safe, and that Hain had a policy of testing "only ingredients, not final products" in order to underrepresent the levels of toxic metals.
The report also found that the levels of toxic metals in Hain's products exceeded its own internal policies. Hain responded publicly that the Congressional report was based on abandoned practices.
In mid-May, Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York consolidated 13 of these actions against Hain alleging violations of state consumer protection statutes. The court refused to consolidate factually-related personal injury actions, however, or cases featuring multiple defendants.
Now Hain, other defendant-baby food manufacturers, and some of the plaintiff-parents are arguing against an industrywide MDL—which would create one matter for all the litigation related to the claims of toxic metals in baby food against all defendants, including for actions involving false advertising, RICO, and personal injury.
Parties opposed to the industrywide MDL argue that grouping all the cases against defendants and Hain would not speed up the litigation. Quite to the contrary they say, claiming that such a move would slow down the litigation because of the sheer number of defendants and counsel that would entail.
Moreover, the opposition to MDL argues such a move would be inappropriate given the distinct legal and factual issues at play, as well as the different discovery needs. They point to the court's decision not to consolidate cases with multiple defendants, which include six different marketing campaigns.
Other plaintiff-parents supporting the MDL disagree. Those plaintiffs say consolidation would actually make the litigation more efficient and speed up the process.
Notwithstanding the lack of clarity in current federal standards, and FDA's new-found willingness to take a look at those standards, Congressional scrutiny of alleged non-compliance can create big litigation for big brands. Congress may yet act with legislations, and that could come sooner than FDA review and revisions of its own guidance.
Judge Skims Class Action Claiming Sargento Cheese Is Up to No Gouda
The cheese strikes again. This time, it's Sargento on the stove over allegations that labels touting the lack of antibiotics in its product are actually a bunch of baloney. Although the milk from which the cheese is made may indeed be antibiotic free, the cows producing that milk are not. After a motion to dismiss and a motion to strike claims, the court sliced out a number of plaintiff's claims, although it allowed plaintiff leave to amend.
A California cheese-lover who bought Sargento cheese products "at least once every two months" for a period of time was allegedly chagrined to find out that although the product labels claim to contain "No antibiotics,*" they actually do, at least according to an independent laboratory test plaintiff ran. He sued on behalf of a nationwide class, alleging that Sargento violated various state consumer protection statutes by falsely marketing the cheese as antibiotics-free.
Enter the reasonable consumer, whom plaintiff argued would interpret the label to communicate first that the cheese is made out of milk from cows that were not fed antibiotics, and second, that the products themselves never contain antibiotics. Plaintiff argued that even though Sargento included an asterisk following "No Antibiotics" which led to small print that reads "Our cheese is made from milk that does not contain antibiotics," the claims were false and misleading because the reasonable consumer could still arrive at these two interpretations about the contents of the cheese, even after reading that disclaimer.
Judge Edward M. Chen agreed with plaintiff—partially. As to plaintiff's argument that the "no antibiotics" claim was false because the reasonable consumer would understand that statement to mean that the cheese was made by cows who had not been given antibiotics, Sargento countered that the reasonable consumer would not come away with that understanding because of the asterisk and small print explaining that the milk does not contain antibiotics. The court agreed with plaintiff, however, finding it "plausible that a reasonable consumer could still believe that there are no antibiotics in the milk because the cows producing the milk were not given antibiotics."
Sargento next argued that, despite the label, its "no antibiotics" claims were not misleading because the reasonable consumer would understand that it would be impossible for all its products to contain zero antibiotics. Although Judge Chen found this argument unpersuasive, he agreed with Sargento that plaintiff did not have standing to sue since only some—and not all—of the company's cheese was found to contain antibiotics, and plaintiff had not alleged that he purchased one of the products containing antibiotics.
Sargento also beat back plaintiff's attempt to seek a nationwide class for the unjust enrichment and warranty claims, although again Judge Chen gave plaintiff leave to amend and assert a narrower class. The problem, found the court, was that plaintiff could not seek a single class implicating the laws of multiple states, especially not having "sufficiently shown that common questions of fact or law predominate over individualized issues—or that a class action would be manageable."
The continuing saga of "natural" cheese claims, which we have covered and smothered here, raises a somewhat new issue: which comes first—the milk without antibiotics or the cow that consumed antibiotics that may or may not find their way into finished milk products? What's a reasonable consumer to understand?