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Consumer Protection

Consumer Protection

WE DEDICATE OURSELVES to serving the greater good by holding large corporations accountable for actions that can harm consumers, public health, and the environment. The driving force behind our consumer protection practice is providing clients with innovative and effective solutions to the legal problems they, and many others like them, face.

The firm was founded on the idea that what has not been achieved through legislation can be achieved through litigation. Our attorneys are advocates for the public interest and act as private attorneys general, seeking to fill in the gaps where legislative and regulatory efforts currently fall short. Many of our cases relate to matters overlooked by United States agencies such as the USDA (Animal Welfare and Organic Integrity), FDA (Food and Labeling Transparency), EPA (Environmental and Food System Contamination), and FTC (“Greenwashing” and Truth-In-Advertising).

Victories

Consumer plaintiffs in New York and California brought suits against The Honest Company, Inc. alleging violation of consumer protection laws in the way that Honest markets some of its personal care, household care, and baby care products as “natural,” “all natural,” “naturally derived,” and/or “plant-based,” and as containing “no harsh chemicals (ever!).” The plaintiffs allege that these products, contrary to the way Honest markets them, actually contain dozens of unnatural, synthetic chemicals.

Some of the chemicals specified in the complaint are also dangerous. For example, one of the synthetic ingredients found in some of Honest’s products is methylisothiazolinone (MI), which is a contact allergen so potent that  as much as 10% of the population may have allergic reactions to is, with more people becoming sensitized every day. MI has been linked to what is called an epidemic of painful skin allergies, including rashes, blistering, swelling, redness, and hives. Reasonable consumers do not expect such chemicals to be in products labeled as having “no harsh chemicals (ever!).”

Recently, there have been positive developments towards potential resolution of this matter. Check back soon for further details.

Plaintiffs brought suit against Johnson & Johnson for making fraudulent “natural” claims on several of its Aveeno Active Naturals line of skin moisturizers. Plaintiffs allege that the Active Natural products contain dozens of harmful and synthetic chemicals, including glycerin, benzaldehyde, and phenoxyethanol, and that defendant fails to disclose the presence of these synthetic, unnatural ingredients. Plaintiffs further allege that the company fails to mention these synthetic ingredients at all on its website marketing the Active Natural products. Plaintiffs allege various violations of New York, California, and Florida consumer protection law relating to this deception.

Recently, there have been positive developments towards potential resolution of this matter. Check back soon for further details.

A consumer plaintiff brought suit against Johnson & Johnson Consumer Cos., Inc. for deceptively marketing Bedtime Bath and Bedtime Lotion products as “clinically proven” to help babies sleep better. The suit alleges that the J&J knew that the products themselves are not clinically proven but were subjected to clinical tests only as part of a three-step routine of bath, massage, and quiet time outlined on the products’ bottles. The plaintiff seeks damages on behalf of herself and fellow consumers for J&J’s alleged violations of New York consumer protection law. In October 2015, J&J filed a motion to dismiss the case and strike the plaintiff’s class allegations. On December 8, 2015, Judge Shira A. Scheindlin issued her decision, denying the bulk of J&J’s motion and allowing the plaintiff’s claim for damages on behalf of herself and fellow consumers to move forward.

Recently, there have been positive developments towards potential resolution of this matter. Check back soon for further details.

With Center for Science in the Public Interest

In November 2012, plaintiffs filed a lawsuit against 7UP manufacturer Dr Pepper Snapple Group, over deceptive antioxidant claims for several regular and diet 7UP varieties. The labels of these products featured pictures of cherries, blackberries, cranberries, raspberries, and pomegranates. Despite the pictures of fruit on the labels, the drinks contained no fruit juice of any kind and were fortified with only a small amount of one antioxidant, vitamin E. One 12-ounce serving contained 9 teaspoons (38 grams) of sugars and 140 calories. The diet versions contained the artificial sweeteners aspartame and acesulfame potassium. The suit alleged that the antioxidant claims were misleading because they gave the impression that beneficial antioxidants were provided by the addition of healthy fruit juices. Further, FDA discourages the fortification of nutritionally empty products like soda.

VICTORY: In July 2013, Dr Pepper Snapple Group agreed to drop its deceptive antioxidant campaign, stop fortifying certain 7UP soft drinks with vitamins, and no longer claim the products have antioxidants.

With Center for Science in the Public Interest

Plaintiffs brought suit against General Mills regarding false and deceptive packaging on its Strawberry Naturally Flavored Fruit Roll-Ups and other “fruit snacks.” The suit alleged that General Mills misled consumers about the nutritional and health qualities of its “fruit” snacks, and that Fruit Roll-Ups snacks lacked any strawberries or significant amount of real fruit but were instead made mostly of sugars, artificial additives, and artificial dyes.

VICTORY: In late 2012, General Mills agreed to improve its labeling for Strawberry Naturally Flavored Fruit Roll-Ups. So long as Strawberry Fruit Roll-Ups contain no strawberries, the label will not carry any images of strawberries. General Mills also agreed to include the actual percentage of fruit in the product when making the claim, “Made with Real Fruit.”

With Center for Science in the Public Interest

Plaintiffs brought suit against General Mills in connection with “all natural” claims on the company’s Nature Valley granola bars. General Mills at the time marketed its granola bars as “100% natural” even though they contain artificial ingredients such as high-fructose corn syrup, high-maltose corn syrup, dextrose monohydrate, maltodextrin, soy protein isolate, or several other artificially produced ingredients.

VICTORY: In November 2014, a settlement agreement was announced which prevents General Mills from claiming that its Nature Valley granola bars and similar products are 100 percent Natural if those products contain high fructose corn syrup, high-maltose corny syrup, dextrose monohydrate, maltodextrin, soy protein isolate, or any other artificially produced ingredients.

Plaintiffs brought suit against Lowe’s Home Center for unlawfully requesting and recording private information from customers who used a credit card at the point of purchase. The suit alleged that zip code collection was not relevant to the purchase (other than for shipping or delivery purposes) and therefor was a direct violation of Massachusetts Unfair Trade Practices Act.

VICTORY: In April 2015, the Court preliminarily approved a proposed Class Action Settlement. The terms of the settlement agreement included the establishment of a gift card fund by Lowe’s Home Center for $300,000, from which consumers would receive a gift card of $25, with any excess amount allocated to the charity Habitat for Humanity.

Following the lead of other companies catering to the demand for environmentally friendly and safe cleaning products, SC Johnson – one of the largest consumer products companies in the world – created its own “green” seal (Greenlist) and placed it on its existing Windex glass cleaner, implying an environmental benefit similar to green cleaners on the market. Despite the new label, SC Johnson did not make any meaningful changes to the Windex formulation or make the product green in any way. Plaintiffs brought this class action alleging that the Greenlist seal was completely fraudulent and misleading, and that Windex provided no environmental benefit whatsoever, and in fact was harmful to children and wildlife.

VICTORY: In July 2011, SC Johnson announced it had agreed to stop using the Greenlist logo on Windex® products.

Pending Cases

Animal Welfare and Organic Integrity (“USDA”)

Direct Action Everywhere, a non-profit focused on protecting animal welfare, and a California consumer representing a putative class brought suit against Diestel Turkey Ranch for the false advertising of its turkey products. Diestel Turkey Ranch is a California-based turkey farm that markets and advertises its turkey products as “Thoughtfully Raised,” “Range-Grown,” “Slow Grown,” and “ Thoughtfully Raised on Sustainable Farms,” among other slogans evocative of humane animal-raising practices. In its advertising, Diestel also invites the public to visit its picturesque turkey ranch in Sonora, where guests can watch as turkeys freely roam the sprawling, green pastures in the foothills of Northern California, creating the impression that all of Diestel’s turkeys are raised in such idyllic conditions. However, the complaint alleges that the company intentionally omits the fact that many of Diestel’s turkeys are actually housed in industrial barns in facilities located miles away from the idyllic Sonora Ranch. The complaint further alleges, conditions at these off-site facilities, which are not open to public scrutiny, are no different from typical agro-industrial conditions, and include overcrowded poultry barns and inhumane conditions with insufficient space for birds to engage in natural behaviors. These conditions are certainly not those expected at a ranch at which turkeys are “Thoughtfully Raised.” With its misrepresentations, the complaint alleges, Diestel is misleading consumers who seek humanely-raised turkeys and unjustly profiting off of their willingness to pay a premium for turkeys that are more ethically produced. The complaint seeks injunctive relief, including an order requiring Diestel to cease the deceptive marketing of its turkey products and requiring them to conduct a corrective advertising campaign, as well as direct financial relief for consumers.

Direct Action Everywhere SF Bay Area, et al. v. Diestel Turkey Ranch

Second Amended Non-Profit Complaint – 11/13/17

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The Organic Consumers Association, a non-profit organization, filed suit against Handsome Brook Farm alleging that the company knowingly deceived customers regarding its animal welfare standards by selling non-pasture raised eggs and falsely labeling them as “Pasture Raised.” Subsequently, Vital Farms, Inc., a competing producer of pasture-raised eggs, also brought suit against Handsome Brook Farm under the Lanham Act, alleging that the company’s misleading advertising and deceptive practices, particularly those relating to pasture-raised standards, are what allowed them to charge lower prices and usurp customers and profits from Vital Farms. As public awareness has grown regarding the inhumane treatment of animals raised for food, and especially the conditions in which many caged egg-laying hens are kept, consumer demand for humanely produced and pasture-raised eggs has grown. Vital Farms has been ethically producing and selling pasture-raised eggs since 2008. The complaints allege that Handsome Brook Farm, who has been selling pasture-raised eggs since 2009, falsely advertises and markets its eggs as exclusively “pasture-raised” when in fact its products include eggs from hens who were not pasture-raised. Within a few years, Handsome Brook Farm grew its egg production and distribution operations from a single flock to hundreds of thousands of hens within its supply chain. This rate of growth is staggering, and unknown among egg distributors who engage in humane, organic, or other quality-control practices beyond basic agro-industrial animal husbandry. The complaints allege that Handsome Brook accomplished this by selling eggs from contract farmers that did not raise their hens in accordance with “pasture-raised” standards. The Organic Consumers Association seeks declaratory and injunctive relief, including an order requiring Handsome Brook Farm to cease its misleading marketing practices and to disseminate corrective advertising. Vital Farms seeks similar declaratory and injunctive, in addition to monetary relief.

Vital Farms, Inc. v. Handsome Brook Farm, LLC, et al.

Complaint – 12/1/16

Organic Consumers Association v. Handsome Brook Farm, LLC, et al.

Amended Non-Profit Complaint – 1/17/17

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Three non-profit organizations filed suit against the country’s third largest poultry producer, Sanderson Farms, Inc., for falsely advertising products that contain unnatural substances as “100% Natural.” Sanderson Farms claims its chicken products are “100% Natural” and “nothing but chicken,” but recent testing conducted by the United State Department of Agriculture’s Food Safety and Inspection Service found a shocking number of instances in which residues of synthetic drugs, which are not “100% Natural,”  appeared in samples of Sanderson chicken. Substances include antibiotics (many of which are medically important for humans), steroids, hormones, and even ketamine, a drug with hallucinogenic effects. By marketing these products as “100% Natural,” the complaint alleges, Sanderson Farms misleadingly suggests that consumers are not ingesting synthetic drugs or other chemicals, and that no antibiotics or other pharmaceuticals are utilized in the raising of their chickens. While Sanderson relies upon images of idyllic farming in its marketing, the presence of these contaminants is illustrative of farming practices that do not prioritize animal welfare, public health, or environmental sustainability. Plaintiffs seek injunctive relief to end Sanderson’s deceptive marketing and advertising practices.

Organic Consumers Association, Friends of the Earth, and Center for Food Safety v. Sanderson Farms, Inc.

Amended Non-Profit Complaint – 8/23/17

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Food and Labeling Transparency (“FDA”)

Plaintiffs brought a multidistrict suit against ConAgra Foods for deceptively labeling and marketing its Wesson brand cooking oils, as “100% Natural.” The suit alleged that Wesson cooking oils were, in fact, produced from unnatural, genetically modified organisms (GMOs), resulting in false and misleading advertising, unfair competition, and/or unfair and deceptive practices. This resulted in the violation of numerous state consumer protection laws, as well as violation of several other statutory and common laws of multiple states such as unjust enrichment.

Environmental and Food System Contamination (“EPA”)

Beyond Pesticides, a non-profit organization headquartered in Washington, D.C., filed suit against Dr. Pepper Snapple Group and its subsidiary Mott’s LLP for misleading consumers about the nature of its Mott’s applesauce products. Mott’s has labeled and advertised products such as Mott’s Natural Unsweetened Applesauce, Mott’s Healthy Harvest Applesauce varieties, and other varieties as “Natural” and/or containing “All Natural Ingredients.” The complaint alleges that by advertising and prominently labeling these products as “Natural”, Mott’s misleads reasonable consumers into assuming that the products do not contain unnatural or synthetic ingredients. Independent lab testing confirmed that Mott’s applesauce products contain the unnatural substance acetamiprid. Acetamiprid, a synthetic neonictinoid insecticidal neurotoxin that may be hazardous to human development and to animals such as the honeybee, is not “Natural.” These deceptive advertising tactics do not represent a commitment to environmental sustainability and marketing integrity. Plaintiff seeks injunctive and financial relief, including the establishment of a community fund for the benefit of the general public to be used for educational and other charitable purposes relating to consumer awareness of acetamiprid.

Beyond Pesticides v. Dr Pepper Snapple Group, Inc., and Mott’s LLP 

Non-Profit Complaint – 5/4/17

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Three non-profit organizations brought suit against General Mills, Inc. for the deceptive labeling and marketing of their Nature Valley products. Awareness of the health risks and environmental damage caused by chemical-laden foods is on the rise and has caused a concurrent increase in consumer demand for foods that are natural, whole, and free of chemicals. Consumers are willing to pay a premium for foods that they believe to be more natural. General Mills, aware of this consumer trend, aggressively advertises and promotes its Nature Valley products, particularly their granola bars, as “Made with 100% Natural Whole Grain Oats” and “100% Natural.” However, the complaint alleges, these claims are false, deceptive, and misleading because the Nature Valley products contain the unnatural chemical glyphosate, as confirmed by independent lab testing. Glyphosate is a potent biocide and herbicide that acts as a human endocrine disruptor, with detrimental health effects that are not yet fully understood. General Mills does not disclose that glyphosate is present in their products and misleadingly claims that the products are natural despite the presence of this unnatural chemical. The complaint further alleges that, based on these product representations, a reasonable consumer would not expect Nature Valley products to contain a harmful chemical like glyphosate. Plaintiffs seek declaratory and injunctive relief, including a halt to General Mills’ deceptive marketing and a court-ordered corrective advertising campaign to inform the public of the true nature of their products.

Organic Consumers Association, Moms Across America, and Beyond Pesticides v. General Mills, Inc.

Non-Profit Complaint – 8/24/16

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Two non-profit organizations and a consumer representing a putative nationwide class, filed suits against the agrochemical giant Monsanto for deceptive labeling and marketing practices. The main ingredient of Monsanto’s retail Roundup® products, the best-selling residential herbicides in the United States, is glyphosate, an herbicide and biocide that studies show can have detrimental effects on human health, particularly to the gut biome. Monsanto claims that glyphosate targets an enzyme, known as EPSP synthase, that is not found in people or pets. The complaints allege that this is false as the enzyme is found in people and pets and is notably important for the gut bacteria upon which their immune systems rely. The complaints further allege that Monsanto’s representation on the product label that “glyphosate targets an enzyme found in plants but not in people or pets” is false, deceptive, and misleading. The company has economically profited and sold products at a premium by deceiving consumers about the potential effects of Roundup®. Plaintiffs seek  monetary relief, including, in the non-profit action, the establishment of a fund for the benefit of the general public to be used for educational and other charitable purposes relating to consumer awareness of glyphosate.

Beyond Pesticides and Organic Consumers Association v. Monsanto Company

Amended Non-Profit Complaint – 6/8/17

Blitz v. Monsanto Company and Scotts MIRACLE-GRO Company

Consolidated Consumer Class Action Complaint – 6/20/17

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The Organic Consumers Association, a non-profit consumer advocacy organization, brought suit against Post Foods, LLC for deceptive labeling and marketing of its Shredded Wheat cereal products. A consumer class action suit was also filed in New York on the same grounds. Consumers increasingly and consciously seek out natural and healthful food products. Post knowingly markets its Shredded Wheat products as a natural and healthful choice containing only “100% Natural Whole Grain Wheat,” with the benefit of being a “Natural Source of Fiber,” hoping to capture the growing natural-conscious consumer market. Through representations on product labels and their website, Post cultivates its image as a healthful, wholesome, and impurity-free brand. The complaints allege that, contrary to Post’s representations, Shredded Wheat contains the unnatural chemical glyphosate, a potent biocide and herbicide that was declared a probable human carcinogen by the cancer research arm of the World Health Organization. Independent lab testing confirmed the presence of glyphosate, which is not “Natural,” in Shredded Wheat products. The complaints further allege that the company deliberately misleads consumers seeking natural food choices into buying its unnatural cereal products. Plaintiffs seek monetary, declaratory, and injunctive relief, including a halt to Post’s misleading marketing practices.

Organic Consumers Association v. Post Foods, LLC 

Non-Profit Complaint – 6/22/16

Stephenson v. Post Foods, LLC

Consumer Class Action Complaint – 6/22/16

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In suits filed in California and Washington, DC, consumers (on behalf of a putative class) and two non-profit organizations, respectively, brought claims against the Sioux Honey Association for falsely labeling their Sue Bee honey products as “Pure,” “100% Pure,” and “Natural.” Tests conducted by the Food and Drug Administration revealed the presence of glyphosate, a widely used biocide and herbicide produced by Monsanto, in Sue Bee honey products. In 2015, The World Health Organization’s International Agency for Research on Cancer, classified glyphosate as a “probable human carcinogen.” Glyphosate use negatively impacts the environment, biodiversity, public health, and our food supply. The complaints allege Sioux Honey is deceiving consumers by promoting and advertising their products as “Pure” and “ Natural” when they contain this dangerous substance. The complaints further allege that the company’s actions do not represent a commitment to truthful marketing and environmental sustainability. Plaintiffs in both cases seek injunctive relief to halt the false marketing of Sue Bee products and a court-ordered corrective advertising campaign to inform the public of the true nature of the products. Plaintiffs in the consumer class action additionally seek monetary relief for damages as a result of Sioux Honey’s misrepresentations.

Organic Consumers Association and Beyond Pesticides v. Sioux Honey Association

Non-Profit Complaint – 11/1/16

Tran v. Sioux Honey Association, Cooperative

Amended Consumer Class Action Complaint – 4/6/17

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“Greenwashing” and Truth-In-Advertising (“FTC”)

A New York consumer has brought suit against Costco Wholesale Corporation for deceptive marketing and labeling of purportedly “environmentally responsible” cleaning products under its private-label “Kirkland Signature” line. Particular products at issue are Kirkland Signature Premium Liquid Dish Soap and the Kirkland Signature Premium Laundry Detergent. Costco labels the products as “environmentally responsible,” alongside claims that the products are made from “naturally derived ingredients,” “Recognized for Safer Chemistry,” “safer for the planet,” and made according to a “biodegradable formula.” In addition, Costco fills the products’ labels with imagery – such as icons resembling recycling symbols, water drops, and leaves, and a central image of a leaf floating in pristine water – that is highly suggestive of “green,” environmentally responsible products. The complaint alleges that, in truth, these products contain unnatural, harmful, and toxic chemical ingredients, including sodium hydroxide, sodium lauryl sulfate, lauramine oxide, and methylisothiazolinone. The complaint further alleges that, by deceiving consumers about the true nature of these products, Costco has been able to profit at the expense of consumers who seek environmentally friendly products and are willing to pay a premium for them. The Plaintiffs seek injunctive and monetary relief, including the removal of Costco’s misleading “environmentally responsible” representations from its products.

Gonzalez, et al. v. Costco Wholesale Corporation

Second Amended Consumer Class Action Complaint – 7/17/17

Breath DC, a non-profit organization based in Washington D.C., has brought suit against Santa Fe Natural Tobacco Company, Inc. and R.J. Reynolds Tobacco Company (collectively, the Defendants), for the deceptive marketing of their “Natural American Spirit” brand cigarettes as “Natural” and “Additive-Free.” Additionally, consumers from several states have brought class action suits on similar grounds and were subsequently consolidated into a Multidistrict Litigation (MDL) under consumer protection statutes in twelve states. Defendants sell a variety of cigarettes under the Natural American Spirit brand, all of which they prominently label and advertise with representations that the cigarettes are “Natural” and “Additive-Free.” Many products also use the term “Organic” on labels and advertisements. The complaint alleges that, by marketing Natural American Spirit cigarettes with these representations, Defendants deceive consumers into believing that these cigarettes present a lower risk of tobacco-related disease and/or are less harmful than other tobacco products. Unfortunately, as the complaint further alleges, Natural American Spirit cigarettes are not safer than other cigarettes, but actually contain higher levels of carcinogens and heavy metals, with levels of nicotine that make them at least as addictive as other cigarettes. In fact, the Food and Drug Administration recently sent a warning letter to Santa Fe Natural Tobacco Company informing it that the use of descriptors like “Natural” and “Additive-Free” leads consumers to believe that such cigarettes pose less of a health risk than other cigarettes, when there is no scientific support for such a claim. It is additionally alleged that the company’s deceptive marketing of Natural American Spirit cigarettes has helped the brand increase sales by 86% from 2009 to 2014, as overall cigarette sales in the United States fell by 17% during the same period.  Breathe DC seeks injunctive relief, including the removal and cessation of deceptive marketing practices, and the consumer plaintiffs in the MDL seek both injunctive and monetary relief, including statutory damages and restitution of ill-gotten gains.

In Re: Santa Fe Natural Tobacco Company Marketing & Sales Practices Litigation and Sales Practices Litigation

Consolidated Amended Consumer Class Action Complaint – 1/12/17

Breath DC v. Sante Fe Natural Tobacco Company, Inc., R.J. Reynolds Tobacco Company, and Reynolds American Inc.

Non-Profit Complaint – 11/7/16

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