Mothers May Sue Gerber Over Sugary Fruit Snacks
National News
The 9th Circuit allowed two mothers to pursue their class action accusing Gerber Products Co. of deceptively dressing up sugar-loaded gummy treats as healthy snacks for toddlers.
The mothers claimed Gerber falsely touts its Gerber Fruit Juice Snacks as "nutritious" and "made with real fruit juice," and displays images of oranges, peaches, strawberries and cherries on the packaging. But a quick look at the label reveals the main ingredients are corn syrup and sugar, and the only fruit juice is concentrated white grape juice.
They also took issue with Gerber calling the saccharine product a "snack," saying "candy," "sweet" or "treat" was more appropriate. Gerber later changed the name to Fruit Juice Treats, but denied that the lawsuit had anything to do with the change.
A federal judge dismissed the case last year, ruling that a reasonable consumer could see through the packaging "puffery" by simply reading the ingredients.
But the appellate court found that on-the-go parents should not have to scour ingredient lists for labeling discrepancies.
"We do not ... think that a busy parent walking through the aisles of a grocery store should be expected to verify that the representations on the front of the box are confirmed in the ingredient list," Judge Pregerson wrote.
"We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception."
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Workers’ Compensation Subrogation of Administrative Fees and Costs
When a worker covered by workers’ compensation makes a claim against a third party, the workers’ compensation insurance retains the right to subrogate against any recovery from that third party for all benefits paid to or on behalf of a claimant injured at work. When subrogating for more than basic medical and indemnity benefits, the Texas workers’ compensation subrogation statute provides that “the net amount recovered by a claimant in a third‑party action shall be used to reimburse the carrier for benefits, including medical benefits that have been paid for the compensable injury.” TX Labor Code § 417.002.
In fact, all 50 states provide for similar subrogation. However, none of them precisely outlines which payments or costs paid by a compensation carrier constitute “compensation” and can be recovered. The result is industry-wide confusion and an ongoing debate and argument with claimants’ attorneys over what can and can’t be included in a carrier’s lien for recovery purposes.
In addition to medical expenses, death benefits, funeral costs and/or indemnity benefits for lost wages and loss of earning capacity resulting from a compensable injury, workers’ compensation insurance carriers also expend considerable dollars for case management costs, medical bill audit fees, rehabilitation benefits, nurse case worker fees, and other similar fees. They also incur other expenses in conjunction with the handling and adjusting of workers’ compensation claims. Workers’ compensation carriers typically assert, of course, that, they are entitled to reimbursement for such expenditures when it recovers its workers’ compensation lien. Injured workers and their attorneys disagree.