Monday, March 25, 2019

How much candy does a consumer expect to find in the box?

Daniel v Tootsie Roll Industries
Southern District of New York

This is one of several lawsuits alleging that the size of the packaging of Junior Mints is misleading to consumers when compared with the amount of candy inside the box.

These are Junior Mints
This is NOT Junior Mints, but they come in a box like this

“Slack fill” is defined by the Food and Drug Administration as “the difference between the actual capacity of a container and the volume of product contained therein.”  Food manufacturers often use slack fill to protect delicate products, such as potato chips or cookies, from crumbling or breaking in the packaging.

A box of Junior Mints contains candy pieces and air.  The lawsuit alleges the box contains "nearly as much air as candy."

In a 44-page decision issued on August 1, 2018, Judge Naomi Reice Buchwald in Manhattan found no fraud, saying “reasonable” consumers could have determined the weight and the number of candies from the information printed on the packaging, and would expect some empty space.

“The law simply does not provide the level of coddling plaintiffs seek,” Buchwald wrote.

“Assuming that a reasonable consumer might ignore the evidence plainly before him attributes to consumers a level of stupidity that the court cannot countenance,” she added.

Beasley v. Tootsie Roll Industries
Northern District of California

This is a new lawsuit against Tootsie Roll Industries, filed December 26, 2018, alleging that Tootsie Rolls and Tootsie Pops failed to disclose on their packaging that they were manufactured with partially hydrogenated oil between January 1, 2010 and December 31, 2016.

Tootsie Roll
Tootsie Pops

The lawsuit alleges that despite the amount of scientific evidence available, Tootsie Industries continued to use partially hydrogenated oil, a byproduct of the manufacture of trans-fat, in their Tootsie Roll and Tootsie Pop products.  The FDA in 2015 “formally declared PHO to be unsafe for use in food,” the suit adds.

Monday, March 18, 2019

Theme Reveal! - A to Z Blogging Challenge

For the last four years, I've alternated between military theme and legal theme for the A to Z Blogging Challenge.

This year I wanted to do something different.  But what to do?

I decided to have some fun on the blog.  So I'll be doing ~drumroll~ the Letter-of-the-Day quiz.

Each day will have ten prompts.  If I can't find a prompt answer for a specific letter, I'll think of something to surprise you.

Some of the prompts will be followed by a photo [all photos are taken from WikiMedia Commons].  Others will be followed by a “fill in the blank”.  Your job is to select the word, beginning with the letter of the day, to correctly identify the prompt answer.  Write your answers/guesses on a separate page, NOT in the comments.

For the comments, I do NOT want you to post your answers, because that will ruin the fun for those visitors who come after you.  What I DO want you to post in the comments is an anecdote that relates to one of the prompts.  So for example, if you've met the famous person of the day, or you've vacationed in the country of the day, or your occupation is the occupation of the day, or you've read the book of the day, I want you to write about that.  So at most, you'll only be giving everyone else the answer for a single prompt.  Or, if you post a cryptic comment, you might not even do that.

The correct answers for the prompts will be posted the following day, so you can check to see how well you did.

Let's practice.  Here are the prompt categories [note: sometimes I take liberties with the categories, so you might need to think outside the box].  Today isn't a "letter of the day", so I'm doing random prompts.  Don't focus on a single letter.

1. Country

2. Famous Person
3. Vehicle
4. Animal
5. Plant
6. Sports
7. Everyday object
8. Book or Movie
________________ Marvel

9. Occupation 
I provide clients with legal advice and may represent them in civil or criminal trials.  I am a/an _________________.

10. Mystery word

The April 1 post will have the A prompts, and the correct answers to today's prompts at the bottom.  Remember, DON'T WRITE YOUR ANSWERS IN THE COMMENTS!  Just post an anecdote that relates to one of the prompts.

Thank you and have fun!

Monday, March 11, 2019

Week 10 - Be sure you know what law you're suing under

Charles Lieupo v Simon's Trucking Inc.
2014-CA-000051 State of Florida
1D17-2065 Florida Court of Appeal

This case has been called “the poster child for everything that’s wrong with America’s lawsuit system.”  Legal experts agree it should have been thrown out of court early in the process.

In 2011, a tow truck driver in Florida was clearing wreckage from a crash when fire ants crawled up his leg and bit him.

This is the story he told at the scene and to his doctors.  But he later changed his story when he sued the towing company, claiming he was injured by battery acid.  He sued the tow company, not for negligence, but under an Environmental Protection statute that establishes strict liability [liability without fault] for the discharge for certain types of pollutants.

During the trial, a medical specialist verified that it was fire ants, not battery acid, that caused the injuries.

If you ever see this in water, DO NOT TOUCH.

But a jury still awarded the driver $5.2 million in damages.

Not surprisingly, the tow company appealed.

On April 18, 2018, the appeals court ruled that the environmental protection statute at issue here can only be used to sue for environmental contamination damages to property, not people. Floridians can still sue for personal injuries, under ordinary negligence statutes.  Plaintiff Lieupo never proved any negligence or other fault by the tow company.

Here, the jury awarded more than $5 million to the Plaintiff, but in the end, he got nothing.

Which is what he should have received much earlier in the process.

Monday, March 4, 2019

Week 9 - What does "all natural" and "non-GMO" really mean?

Song v. Kind LLC, et al.
Case No. 1:15-md-02645-WHP
Southern District of New York

Also:  1:18-cv-04982
Eastern District of New York

Kind fruit bar class action lawsuit.  One lawsuit was filed in 2015 and another in 2018.  They have been consolidated and will proceed together.

Plaintiff's claims: (1) the “all natural” claim is false.  The ingredient lists on the fruit bars falsely convey that the bars are made from whole fruits.  Instead, plaintiff alleges the bars are actually made from fruit derivatives and/or are processed in ways consumers would not expect.  (2) Kind falsely labels its ingredients as “non-GMO,” when they actually contain genetically modified canola, corn and soy.
The combined lawsuit alleges that the company is profiting off consumers’ desire to eat healthier, by labeling the product as healthier when it's not.  Plaintiff says that she and other consumers would not have paid the higher price of the Kind products if they had not been tricked by marketing that made them believe the products were made with whole fruit.

The case was placed on hold until the USDA established a national disclosure standard for bio-engineered food, which it was supposed to do in 2018.  However, the process stalled and plaintiffs [and the court] got tired of waiting.  In February 2019, the court ended the hold and the case is moving forward again.