[UPDATE – On April 30, 2018, U.S. District Court Judge Jon S. Tigardismissedthis lawsuit, giving the plaintiff only 21 days to file an amended complaint before he will toss the suit once and for all. Judge Tigar greenlighted defendants Danone North America and The Whitewave Foods Company’s motion to dismiss on the grounds that the plaintiff’s claims are preempted by a federal law known as the Organic Foods Product Act (OFPA).
Further, Judge Tigar wrote the plaintiff’s claims must be tossed because the woman “cannot allege the injury required to demonstrate standing under California law,” given the defendants’ labels disclose the facts giving rise to the lawsuit’s allegations.
“Because the label prominently disclosed the presence of DHA, [the plaintiff] did know all the relevant facts,” Judge Tigar said. “As a separate and independent reason for dismissing the complaint, the court concludes that [the plaintiff] cannot plead reliance or economic injury, and therefore lacks statutory standing to bring her claims.”]
Danone North America, LLC and the Whitewave Foods Company—collectively known as DanoneWave—are staring down a proposed class action filed in late December in which the plaintiff alleges the entities deceptively advertise their Horizon Organic Milk plus DHA Omega-3 products. The 23-page lawsuit alleges the following products, despite their advertising and promotion, are not as organic as the defendants purport them to be:
Horizon Organic Milk with DHA Omega-3;
Horizon Organic Reduced Fat Milk with DHA Omega-3;
Horizon Organic Fat-Free Milk with DHA Omega-3;
Horizon Organic Lowfat Chocolate Milk with DHA Omega-3;
Horizon Organic Lowfat Chocolate Milk Box with DHA Omega-3; and
Horizon Organic Lowfat Vanilla Milk Box with DHA Omega-3.
According to the lawsuit, the defendants’ claim that their milk products are certified as organic is no more than a tactic meant to take advantage of consumers’ tendencies to believe organic foods are superior and healthier than conventionally derived products. At issue, the complaint reads, is the defendants’ inclusion in the above-listed products ofDHA, an omega-3 fatty acid found in fish oil supplements.
“Horizon Organic milk is not organic. The DHA DanoneWave adds to the Horizon organic milk is not organic and is not an additive that may be included in certified organic food products, such as defendants’ Horizon Organic milk,” the lawsuit claims.
The lawsuit says the DHA omega-3 used by the defendants is, in fact, synthetically manufactured from a type of algae “fed a continuous diet of corn syrup in order to boost reproduction” and other non-organic processing aids that remain in the finished DHA additive.