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False Advertisement and Unjust Enrichment Claims Against Kombucha Brewer Dismissed for Lack of Notice and Lack of Conferred Benefit

  • Amos v. Brew Dr. Kombucha, LLC, Case No. 3:19-cv-01663-JR, an Oregon magistrate judge recommended the dismissal of a class action lawsuit which alleged that Defendant Brew Dr. Kombucha, LLC, had breached express and implied warranties and unjustly enriched itself through the sale of kombucha drinks that allegedly were falsely advertised as containing a significantly higher concentration of probiotic bacteria than they actually contained.

  • Applying the conflict of law provision of Oregon (the forum state), the judge found that her task was to determine “in what state the injurious conduct and resulting injury occurred.” Plaintiff argued that the injurious conduct occurred in Oregon because the Defendant was headquartered there and the labelling containing the alleged misrepresentation occurred there. The judge rejected this argument and found that the injury occurred in Idaho, where the product was sold. Therefore, applying Idaho law, the judge found that: 1) the warranty claims must be dismissed because Plaintiff had failed to give notice to the seller, and 2) the unjust enrichment claim must be dismissed because there was no evidence that any benefit was conferred directly upon the Defendant as opposed to the retail seller.

  • This decision is a reminder of the significance of the forum and of the characteristics of the class representative in class action lawsuits, and food companies should be mindful of the different liabilities to which they may be exposed to depending on where their product is sold.

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Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...