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isn't in every tomato!

Canned tomato label misleads consumers, federal judge rules

Consumer Watch: A class of consumers claim that Simpson’s canned tomatoes use labeling that suggests they are high-end San Marzano tomatoes, when in fact they are lower quality San Merican tomatoes.

By MICHAEL GENNARO, Contributing Writer

SAN FRANCISCO (CN) — A federal judge is allowing some claims to continue against Simpson Imports from consumers who claim that the company uses misleading labels on its canned tomatoes.

Andrea Valiente, the named plaintiff in a 2023 class action, claims that Simpson’s canned tomatoes use labeling that suggests they are high-end San Marzano tomatoes grown in Italy, when in fact they are lower quality San Merican tomatoes. Simpson no longer sells San Marzano tomatoes, but Valiente says the packaging on the San Merican tomatoes is extremely similar to Simpson’s old San Marzano packaging.

US District Judge Araceli Martinez-Olguin, a Joe Biden appointee, wrote in her opinion that the critical issue is whether the products are “substantially similar” with respect to any purported mislabeling. Martinez-Olguin wrote that Valiente had standing because her claims about the tomato products were consistent and all of the tomatoes shared similar branding that could mislead a reasonable consumer.

The old cans had an illustration of a red tomato with “San Marzano” written on it. Valiente says the current cans use a nearly identical design, using the same red tomato but replacing the “San Marzano” text with the abbreviation “SMT.” On the label’s SMT abbreviation, embedded within the letters corresponding to Simpson’s brand is text: “San” for “S,” “erican” is nested within the letter “M,” and “omato” appears under “T.”

San Marzano tomatoes originate in Naples, Italy, and are thinner and more pointed than a standard Roma tomato, and have a sweeter, less acidic taste. Because of these characteristics, San Marzano tomatoes are better suited for making tomato sauces, and are typically priced at double or triple the price of an ordinary tomato.

Valiente claims the text embedded in the “SMT” abbreviation is “so comically miniscule that it is almost impossible to see with the naked eye,” and that the tomato illustration is of a San Marzano tomato. Additionally, the San Merican tomatoes are sold at a similar price point to San Marzano tomatoes, furthering the deception.

Valiente asserts claims for violation of all three prongs of California’s Unfair Competition Law, violation of California’s Consumers Legal Remedies Act, violation of California’s False Advertising Law, fraud, breach of express warrant and unjust enrichment.

“Consumers have purchased hundreds of thousands of defendant’s products under the false, but reasonable, impression that they were purchasing a San Marzano varietal of tomato, when they were not,” Valiente said in her complaint.

Simpson moved to dismiss the claims, saying that Valiente lacked standing, that the “SMT” abbreviation was up to artistic interpretation and that Valiente’s claims were preempted by the Food, Drug, and Cosmetic Act — which expressly preempts all state statutes and law that directly or indirectly establish any requirement for the labeling of food that is not identical to the federal requirements set forth by statute and Food and Drug Administration regulations. 

Simpson claimed that Valiente’s complaint imposed a disclosure agreement on the company that the FDCA does not contain. Simpson claimed the FDCA does not require them to state the varietal of tomato, but instead only specify that the products are tomatoes, which the label does, and the country, which the label does.

Martinez-Olguin, however, ruled in Valiente’s favor for the FDCA claims because Valiente is challenging the text on the label, not the representation of the products as tomatoes.

“Valiente expressly disclaims any attempt to impose labeling requirements other than those set by federal law. Instead, Valiente seeks to hold Simpson accountable for adding content that, as alleged, is both (1) not required by federal regulations and (2) misleading. As such, Valiente’s claims are not preempted,” Martinez-Olguin wrote.

The court may revisit both of these claims in the future, however, Martinez-Olguin wrote, because some of Valiente’s claims in her complaint are contradicted by some of the present arguments before the court. 

Claims under the California Unfair Competition Law, California Consumer Legal Remedies Act, and False Advertising Law claims will all be allowed to proceed at this stage because of the confusing nature of the tomatoes’ label, Martinez-Olguin wrote.

“It is plausible for reasonable consumers to view the letters ‘SMT’ and the illustration on Simpson’s label and expect a San Marzano tomato, particularly when they have paid a price that is comparable to other San Marzano tomatoes,” Martinez-Olguin wrote.

Martinez-Olguin did grant Simpson’s motion to dismiss Valiente’s claims for injunctive relief because there is no threat of future harm now that Valiente is aware of the deception. The judge also dismissed class claims at this point because Valiente is still conforming her proposed class definition to her counsel’s representation.

Valiente must file any amended complaint in the next 21 days.

randys d.jpg

Randy'sknown locally for its landmark giant rooftop donut at 805 W. Manchester Blvd.unveiled a new selection of coffee, boba, milkshakes, and chilled and frozen beverages available at that original Inglewood location as well as all other shops in Southern California and Las Vegas.

Randy's Donuts buoys doughy rep with expanded drink menu
INGLEWOOD (CNS)Randy's Donuts, a well-loved bakery chain based in Inglewood since 1952, announced it is expanding its classic menu of handcrafted donuts and coffee to include a new selection of beverages.

Randy'sknown locally for its landmark giant rooftop donut at 805 W. Manchester Blvd.unveiled a new selection of coffee, boba, milkshakes, and chilled and frozen beverages available at that original Inglewood location as well as all other shops in Southern California and Las Vegas.

"Randy's Donuts has been serving delicious donuts and coffee for over 70 years," Randy's Donuts Owner Mark Kelegian said. "Now, with our expanded range of specialty coffees, vibrant refreshers, indulgent milkshakes, and popular boba, we're elevating the everyday joy of little treats to something truly iconic. It's all about celebra- ting those small, sweet moments in life, much like our famous 40-foot rooftop donut has become a symbol of joy in the heart of Southern California."

New menu items include: a Maple Cream Iced Coffee, Butter Crumb Latte, Sea Salt Caramel Frappe, all made with Randy's Roast; authentic boba drinks made with all natural syrups and powder teas; a Pina Colada Refresher and Orange Creamsicle Lemonade, available iced or frozen; and milkshakes made with premium
hand scooped ice cream.

Randy's is self-proclaimed "the most iconic and recognized donut shop in the world" with locations in Los Angeles, Orange County, San Diego, Las Vegas, the Philippines, South Korea, and Saudi Arabia

Walmart on hook over claims of heavy metals in spices

Heavy metals like arsenic, cadmium and lead have been found in a third of herbs and spices 



SAN FRANCISCO (CN)—A federal judge advanced claims that some products in Walmart's Great Value line of spices may contain toxic heavy metals, and that the retail giant failed to warn customers of those metals and potential health risks.

Plaintiffs Susan Gagetta and Traice Gomez say in a class action filed this past June that Walmart failed to tell customers that certain herbs and spices in its Great Value line including basil, chili powder, ground cumin and organic paprika and ginger, may contain lead, arsenic and cadmium. Both plaintiffs are Walmart customers living in California. 

They cited a November 2021 report “Your Herbs and Spices Might Contain Arsenic, Cadmium, and Lead” from Consumer Reports, which analyzed 126 individual products from national and private-label brands, including Walmart’s Great Value, and determined a third of the tested products had high enough levels of arsenic, lead, and cadmium combined, on average, “to pose a health concern for children and adults when regularly consumed in typical serving sizes.”

Heavy metals in foods can cause cancer and serious, possibly irreversible damage to brain development along with other serious health issues. Exposure to lead may cause anemia, weakness and kidney and brain damage, which affect almost every organ and system and accumulates in the body over time. Arsenic can cause bladder, lung, liver and skin cancer, as well as strokes and diabetes. 

The plaintiffs say Walmart knew customers would be unwilling to purchase, or would pay less for, these products if they knew that they contained toxic heavy metals, and “intentionally and knowingly concealed this fact from customers” by not disclosing the presence or risk of toxic metals on product labels.

"No reasonable consumer would know, or have reason to know, that the products contain (or risk containing) heavy metals," the plaintiffs say in their complaint. "Worse, as companies across the industry have adopted methods to limit heavy metals in their herbs and spices, defendant has stood idly by with a reckless disregard for its consumers’ health and well-being."

They seek a trial and a court order barring Walmart from selling and marketing products with misleading label- ing, and requiring the company to disclose that products contain heavy metals and notify everyone who pur- chased those products of the pending class action.

In a motion to dismiss, Walmart said the putative class relies on "false information debunked by judicially notice- able, science-based facts published by federal agencies in charge of overseeing this nation’s food supply." The company cited statements by the Food and Drug Administration and U.S. Department of Agriculture that natur- ally occurring arsenic, cadmium and lead are "ubiquitous" in the food supply no matter how an agricultural product is cultivated, and cannot be avoided. 

Walmart also said that the plaintiffs failed to state a claim because they have not alleged any physical econo- mic injury from purchasing Great Value herbs and spices and do not say with certainty that those products contained heavy metals.

In a ruling late Wednesday, US District Judge William Orrick III tossed implied warranty claims for failure to state a claim but found the main question of the case—whether the products contained a dangerous level of metals —cannot be decided at this stage in the proceedings and must advance. 

Orrick found the plaintiffs have put forth an adequate theory of injury for most of their causes of action due to risk, because they would have not have purchased the products if they had known about any contamination and because Walmart does not contest that its products probably contain heavy metals. He added that it is "a hotly contested issue of fact" on whether any level of the metals is safe, making it inappropriate to resolve in a motion to dismiss. 

However, Orrick agreed with Walmart that the plaintiffs failed to show the company breached the implied war- ranty under the Song-Beverly Act—requiring that products are fit for the purposes they are used for—because they do not show the products "were without the most basic degree of fitness" or "failed to perform their most basic function of flavoring or seasoning."


He gave the plaintiffs until Jan. 9 to file an amended complaint. Attorneys for the plaintiffs and Walmart did not respond to requests for comment before deadline.

Spice giant McCormick faces a similar putative class action, also filed in San Francisco federal court this past January.

Ok, Subway, is it tuna or not?


Mystery Word Games: Subway still on hook for claims of no tuna in its tuna sandwiches

OAKLAND, Calif. (CN)—A federal judge on has denied sandwich giant Subway’s bid to dismiss consumers’ claims the tuna served in its restaurants isn’t tuna at all.

Karen Dhanowa and Nilima Amin grabbed national headlines in 2020 when they accused Subway of duping consumers into paying more for sandwiches advertised as tuna without having tuna in them at all.

“In truth, the products do not contain tuna as ingredient. On the contrary, the filling in the products has no scintilla of tuna at all. In fact, the products entirely lack any trace of tuna as a component, let alone the main or predominant ingredient,” the women claimed in their lawsuit filed in the Northern District of California. 

Speculation abounded. A New York Times reporter actually purchased 60 inches of sandwich, removed the tuna and sent it off to a lab for analysis. The results were inconclusive, as the meat was too processed to identify. Since then, the sandwich chain has launched a campaign to defend itself against these accusations, even creating a website——as a defense from the lawsuits and a New York Times probe. 

This past October, US District Judge Jon Tigar tossed the women’s lawsuit, finding they failed to meet a critical standard for describing any fraudulent conduct.

The plaintiffs fired back with an amended complaint claiming Subway’s tuna either partially or wholly lack tuna. In fact, they claimed the tuna may contain other fish and animal products or miscellaneous products—noting samples from California restaurants indicated the tuna filling was "a mixture of various concoctions that do not constitute tuna, yet have been blended together by defendants to imitate the appearance of tuna."

They did not report what lab tests found in lieu of tuna. But Subway denied these claims, telling Food and Wine that "Subway delivers 100 percent cooked tuna to its restaurants, which is mixed with mayonnaise and used in freshly made sandwiches, wraps and salads that are served to and enjoyed by our guests. Given the facts, the lawsuit constitutes a reckless and improper attack on Subway’s brand and goodwill, and on the livelihood of its California franchisees."

Ruling on a new motion to dismiss, Tigar found July 7 that Dhanowa’s claims should be nixed with prejudice since she had apparently never purchased tuna sandwiches from Subway. He also accepted Subway’s argu- ment that no consumer would be misled into thinking its tuna products didn’t contain other ingredients—mayo- nnaise, bread, other things normally found in a tuna sandwich—and dismissed claims made on that basis.

But Tigar declined to dismiss claims that Subway’s tuna contains “other fish species, animal species or miscel- laneous products.”

While Subway argued that any non-tuna DNA discovered in tests must have come from the eggs in mayon- naise or cross-contact with other ingredients, Tigar said it is possible it comes from ingredients consumers wouldn’t expect to be in a tuna sandwich.

"Even if the court accepted Subway’s statement that all non-tuna DNA must be caused by cross-contact with other Subway ingredients, it still would not dismiss the complaint on this basis," Tigar wrote. "Whether, and to what extent, a reasonable consumer expects cross-contact between various Subway ingredients is a question of fact."

He also denied Subway’s motion to dismiss claims its tuna products have no tuna at all "because a reasonable consumer would expect that a product advertised as 'tuna' to contain at least some tuna as an ingredient."

As for claims of fraud in advertising, Tigar found Amin provided enough details for why the company’s descrip- tions could be misleading if there are other ingredients besides tuna in a tuna product. He also said at this stage in the litigation, nothing in the law requires Amin to provide specifics about the lab tests she and her attorneys had run on the tuna product.

Subway’s lawyer Mark C. Goodman did not respond to a request for comment by press time.



Walmart panics from social media backlash; freezes rollout of new Juneteenth Ice Cream



LOS ANGELES (MNS)Rattled by a potential backlash about the debut of its new dessert product Juneteenth Ice Cream, Walmart corporate officials pulled the item, which commemorates Juneteenth after criticism appeared on social media.


The ice cream, consisting of a swirl of red velvet and cheesecake flavors, features what appears to be an inoffensive proclamation: "Share and celebrate African-American culture, emancipation and enduring hope."


But some on social media have accused Walmart of using Juneteenth as a marketing scheme. One was comedian Roy Wood Jr., who tweeted, "Would you like some Juneteenth Ice cream on a Juneteenth plate as you sip your beer in a Juneteenth Koozie?"

Another man named Christopher, tweeted, "So what type of toppings do you put on this mess? Crushed souls and shackle-shaped sprinkles??? It’s a no for me."

Still a third tweeter who goes by the name, Uncle Samp, shared, "Walmart backed Juneteenth ice cream is in the same vein as what's happened to BLM, and Pride, and Anti Work. As our ideas become more 'main- stream' we have to think of how to protect them from being recuperated and de-radicalized."

Estelle Goodlow, who said she read about the backlash and subsequent reaction by Walmart management on Facebook, laughed at Walmart's "overreaction. I think it's funny that they would pull the ice cream. I don't see anything wrong with it. I'm disappointed. I would have bought some."


Walmart was apolegetic and released a statement to media outlets: "Juneteenth holiday marks a celebration of freedom and independence. However, we received feedback that a few items caused concern for some of our customers and we sincerely apologize. We are reviewing our assortment and will remove items as appropriate."

Juneteenth commemorates June 19, 1865, when Union soldiers brought the news of freedom to enslaved Black people in Galveston, Texas, two months after the Confederacy had surrendered. It was about 2 1/2 years after the Emancipation Proclamation of 1863 was signed by President Abraham Lincoln freeing slaves in Texas.



Venerable eatery shutters the grill

LOS ANGELES (MNS)After a run of 80 years, Art’s Famous Chili Dogs in South LA has hung up the buns. But not before one customer who had been coaxed to try one of the eatery’s chili dogs for years finally relented.


“For year’s my dad and my brother been telling us to come try it out,” Brianna Guzman told KABC News. “So, this is the first time and I’m just sad about it. It was really good.”


Guzman chowed down on the Jumbo Chili Dog, immediately realizing after the first bite what she’d missed all these years. Sadly, she wouldn’t be able to return.


Christopher Oliver said he grew up in the neighborhood and has been a customer of Art's Famous Chili Dog Stand for over three decades.


“Sorry to hear that it’s not going to be in business anymore. It really hurts, it really hurts my heart,” Oliver told KABC. “Now I’ve got to go back and explain to my kids, this is my last chili dog.”


Art’s Famous Chili Dogs, was a familiar sight at1410 W. Florence Ave. for 80 years, founded in 1939 by frankfurter entrepreneur, Art Elkind, who was its owner until 1990. After Elkind passed, Darrell Nelms bought it in 1994, remodeled it and kept the popular spot operative until March 8, 2020. Nelms’ daughters Fallon and Naijah Nelms co-owned the stand with their mother.

“This was our father’s dream" to own and operate the chili dog grill, Fallon said of Darrell, who himself passed in 2018.

Fallon told KABC of she and Naijah’s valiant effort to keep the chili dog stand open, but in recent years haven’t been able to attract enough foot traffic to justify keeping the doors open, Eighty years ago, Elkind sold the dogs for only 10 cents.


Looking back four decades


A chemical engineer, Elkind turned to selling hot dogs when unable to find work during the Great Depression. He opened the joint two miles west of its current location at Florence and Normandie Avenues. Elkind claims to have invented the chili dog when he was selling hot dogs and chili from a pushcart when someone suggested that he combine the two (other hot dog vendors have disputed this legend).  He did, however, invent his own hot dog steamer, which kept all of hot dog’s ingredients at the same temperature, and for using a hot dog which was only part pork and had no natural casing, which contributed to his chili dogs’ unique flavor.


This stand quickly became well-known for its chili dogs and also for the personality of Elkind. He was described as a classic New Yorker, who was tough on the outside but kind on the inside.

Elkind died of a heart attack in October 1990.  

Metropolis News Service.

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