Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (U.S. Dist. Ct., W.D. Tex., Austin Div., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cnty., filed November 7, 2014).
The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because 2 grams of sugar would be “lower than any competitors’ Greek yogurt, which contain at least 5 to 10 grams of sugar per serving. By falsely listing a lower sugar content, Defendant was able to sell the Yogurt for a premium in the market place and at a higher price than it would have had it labeled the sugar content correctly.”
Invoking California statutory and common-law violations, the plaintiff requests disgorgement, injunctive relief, damages, equitable remedies, attorney’s fees, costs, and interest. He seeks to certify a nationwide class of purchasers of the product since November 7, 2010, and a California subclass of purchasers.
Meanwhile, the California complaint contends that “Whole Foods misbranded Blue Diamond Refrigerated Almond Breeze Original Almond Milk and Blue Diamond Refrigerated Almond Breeze Vanilla Almond Milk by advertising and selling these products with the Non-GMO Project Verified labels when these products have not been verified by the Non-GMO Project. In so doing, Whole Foods has violated California’s Sherman Law and California consumer protection statutes.” Alleging that genetically modified organisms (GMOs) “have been linked to thousands of toxic and allergic reactions, sick, sterile and dead livestock, and damage to almost every organ and system studied in lab animals,” the plaintiff contends that “maintaining a diet free from GMOs has become important to a growing number of consumers.”
The named plaintiff claims that she has a son who has been diagnosed with autism and that she regularly purchases and pays a premium for non-GMO products. She relied on the product labeling, but “would not have purchased the products, would have purchased less of the products, and/or would have paid less for the products,” had the company not marketed, advertised and labeled them as verified by the Non-GMO Project. Seeking to certify a nationwide class of those who purchased the products within the last four years, the plaintiff alleges violations of the state’s Unfair Business Practices Act, False Advertising Act and Consumers Legal Remedies Act; negligent misrepresentation and breach of quasi-contract. She requests changes to the product labels and corrective advertising; actual, punitive and statutory enhanced damages; attorney’s fees; costs; and interest.