On December 13, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) published a notice of modified text to its proposed short-form Proposition 65 warning regulations.

As Perkins Coie previously detailed, OEHHA proposed amendments to its Proposition 65 warning regulations earlier this year that sought to dramatically restrict businesses’ use of short-form warnings (the “Proposed Amendments”). Specifically, OEHHA’s Proposed Amendments sought to:

  • limit the use of short-form warnings to products with five square inches or less of label space;
  • eliminate the use of short-form warnings for internet and catalog warnings; and
  • significantly lengthen the short-form warning language.

The public comment period was open from January 8, 2021, through March 29, 2021, and garnered over 200 public comments, the majority of which urged OEHHA not to adopt the Proposed Amendments.

After consideration of the public comments, OEHHA released modified regulatory text on December 13, 2021 (the “Modified Text”). The key modifications are as follows:

  • Increased Label Size Limits. The maximum label size for short-form warnings was increased from 5 square inches to 12 square inches.
  • Short-Form Permissible on Websites/Catalogs. Short-form warnings are permissible on websites and catalogs if the product itself also uses a short-form warning.
  • New “Signal Words.” Warnings (both long-form and short-form) may use additional “signal words” such as “CA WARNING” or “CALIFORNIA WARNING.” For example:

 CALIFORNIA WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.

  • Additional Warning Language Variations. The January 8, 2021, Proposed Amendments expanded the content of short-form warnings to include (1) the name of at least one chemical and (2) the terms “risk” and “exposure.” The Modified Text provides additional variations of warning language that would be permissible. For example:

 CA WARNING: Risk of reproductive harm from exposure to [name of chemical] – www.P65Warnings.ca.gov.

 CA WARNING: Exposes you to [name of chemical], a reproductive toxicant – www.P65Warnings.ca.gov.

The Modified Text preserves two important provisions introduced in the Proposed Amendments:

  • Explicit clarification that short-form warnings may be used on food products (which was previously ambiguous); and
  • A “sell-through” provision, whereby the new warning regulations would not apply to products manufactured prior to the effective date of the regulations. Warnings on previously manufactured products will be considered compliant if they follow the 2016 Proposition 65 regulations.

Written comments responding to the proposed regulations are due by January 21, 2022. After the close of the comment period, regulators will decide whether to issue final regulations. Based on the timeline in the proposed regulations, the limitations on short-form labeling would go into effect one year after these final regulations are promulgated.

Artfully worded disclaimers are an increasingly powerful tool for food companies looking to protect their label claims, as the following case illustrates.

On December 6, 2021, the Southern District of California tossed a case alleging that Defendant’s hand sanitizer falsely claimed it “kills 99.99% of germs,” followed by an asterisk that stated, “Effective at eliminating more than 99.99% of many common harmful germs and bacteria in as little as 15 seconds,” because the product was “substantially ineffective against approximately 54 pathogens.” The Court first held that Plaintiff failed to establish standing because he lacked a cognizable injury—”Plaintiff points to the Products alleged ineffectiveness….Yet nothing suggests that the Products did not accomplish their intended purpose to some degree.” Further, Plaintiff’s amended complaint “makes no representations that the alleged issues resulted in payment of a premium.” Continue Reading Plaintiff Could Not Clean Up Defendant’s Hand Sanitizer Labeling

Health-conscious consumers continue to challenge the sugar content in foods, including sugar appearing in other forms, such as “dehydrated cane juice solids.” But as one recent case shows, calling sugar by another name is not actionable alone if the product does not otherwise make representations about sugar content and accurately discloses sugar content on the nutrition facts panel. Continue Reading Sugar by Any Other Name: Plaintiff’s Recent Challenge to “Dehydrated Cane Juice Solids” Fails

On November 12, President Biden announced his intention to nominate Dr. Robert Califf as Commissioner of the U.S. Food and Drug Administration (“FDA”). Dr. Califf, a cardiologist, previously served as FDA Commissioner in the Obama Administration between February 2016 and January 2017. Califf is currently a professor of medicine at Duke.

The FDA has been without a permanent head since January 2021. For the past 10 months, the agency has been helmed by Acting Commissioner Janet Woodcock, who joined the FDA in 1986. In announcing Califf’s nomination, President Biden applauded Acting Commissioner Woodcock and her staff’s dedication during a “busy and challenging” time for the agency and noted that the agency would continue “its science and data driven decision-making” during this “critical moment” under Califf.

If confirmed, Califf would join the FDA as it prepares for further work in the face of the pandemic and supply-chain issues. Califf’s confirmation hearings could provide insights on his views on cannabidiol (“CBD”) and other issues facing the food and beverage industry.

A New Jersey federal court dismissed slack-fill claims against the manufacturer of Junior Mints and Sugar Babies products. Plaintiff Regan Iglesia purchased Junior Mints in 2017 and claimed that the boxes of the challenged products were about forty-five percent empty. He brought suit under a litany of alleged violations related to this area of empty packaging, called slack-fill. On October 18, the court dismissed each of Iglesia’s claims, holding that the complaint was not plead with adequate particularity, including the date or exact location of the alleged purchase.

The court went on to provide additional holdings, including:

  • No Standing for Products Plaintiff Did Not Purchase: The court held that Iglesia had standing to bring claims for products he purchased (Junior Mints) and lacked standing to pursue claims regarding products he did not purchase (Sugar Babies).
  • The Challenged Labeling Was Not Misleading Under the Reasonable Consumer Standard: The Court further held that the products were sold by weight, not volume, so the challenged net weight statement was not misleading, even if the claims were plead with particularity. Specifically, the labeling challenge failed under the reasonable consumer standard as the net weight of the products was displayed on the front of the packaging in easily discernable font. Relying on a 2018 slack-fill decision dismissing claims against Junior Mints products, the court found that “a consumer can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.”
  • The Size of the Product’s Packaging Did Not Create an Express Warranty: Applying New Jersey law, the court held that the size of the product’s boxes did not create an express warranty, writing “an express warranty based on the size of the box alone is, in essence, an implied express warranty, which the law does not permit.”

The court granted the motion to dismiss without prejudice on all counts apart from unjust enrichment, finding that any amendment would be futile on that claim. Iglesia has thirty days to amend the complaint. The case is Iglesia v. Tootsie Roll Industries LLC, No. 3:20-cv-18751 (D.N.J.), and the order is available here (link).

Food litigation filings have risen significantly in the recent past. According to data collected by Perkins Coie, even with the pandemic, filings targeting the food and beverage industry have seen record levels in 2020 and 2021. But these filings face a formidable obstacle: the reasonable consumer defense. Courts continue to apply the “reasonable consumer” standard to reach early dismissals in cases positing implausible theories as to how consumers actually read and understand the labels of consumer-packaged goods. The reasonable consumer defense remains an important check on the rising number of food litigation matters filed across the country. As the Ninth Circuit Court of Appeals recently noted, “a reasonable consumer does not check her common sense at the door of the store.”

Recent cases involving vanilla illustrate how courts across the country reason with the “reasonable consumer” standard. These cases generally allege that a “reasonable consumer” expects that a product labeled as flavored with vanilla (e.g., vanilla ice cream or vanilla soy milk) derives its flavor exclusively from pure vanilla or vanilla extract. The nation’s courts have seen over 120 new suits based on this theory since 2019.

But recent decisions in New York and California federal courts show federal courts are growing increasingly impatient toward the tide of vanilla litigation. Most courts have concluded that no “reasonable consumer” is misled by a claim indicating that a product is flavored with vanilla when that product, in fact, tastes like vanilla. Relying on common sense, these courts have repeatedly held that when consumers read vanilla on a product label, they understand it to mean the product has a certain taste, not that it is derived exclusively from vanilla beans. See, e.g., Steele v. Wegmans Food Mkts., Inc., 472 F. Supp. 3d 47, 50 (S.D.N.Y. 2020); Clark v. Westbrae Natural, Inc., 2020 WL 7043879 (N.D. Cal. Dec. 1, 2020); Pichardo v. Only What You Need, Inc., 2020 WL 6323775, at *5 (S.D.N.Y. Oct. 27, 2020); Parham v. Aldi, Inc., No. 19 CIV. 8975 (PGG), 2021 WL 4296432, at *4 (S.D.N.Y. Sept. 21, 2021).

In consumer class action matters generally, and food litigation matters specifically, the reasonable consumer defense is often dispositive. The outcome of vanilla-related lawsuits demonstrate that the reasonable consumer defense is here to stay, presenting an important check on rising food and beverage litigation.

Key Takeaway: As consumer demand for “sustainable” products grows, so does the risk of litigation challenging sustainability claims on advertising and packaging. As one recent case shows, failure to plead actual reliance can be grounds for dismissal of claims that sound in fraud, including claims under California’s False Advertising Law (“FAL”), Unfair Competition Law (“UCL”), and Consumers Legal Remedies Act (“CLRA”).

On October 7, 2021, the Northern District of California dismissed a suit alleging that a restaurant chain’s tuna sandwiches are not “100% sustainably caught skipjack and yellow fin tuna” as advertised. The Court found that the Plaintiffs alleged the “who” (the Defendant) and the “what” (the sandwiches) but not the other elements required to meet a heightened pleading standard for claims that sounded in fraud. “Plaintiffs still need to describe the specific statements they saw and relied upon, when they saw the statements, and where the statements appeared.” The Court found it fatal that Plaintiffs did not allege that “they actually read or heard any such advertising or packaging.”

Plaintiffs could not overcome this specificity requirement by alleging that the defendant’s advertising campaign was long-running and widespread. Ultimately, the Court dismissed with leave to amend Plaintiffs’ FAL, UCL, CLRA, and common law fraud claims. The Court also dismissed Plaintiffs’ unjust enrichment claim as duplicative.

The case is Amin et al v. Subway Restaurants, Inc. et al., No. 4:21-cv-00498 (N.D. Cal. – October 7, 2021), and the Court’s opinion is available here.

As readers of this blog know, food law is a hot topic in today’s legal practice. For those looking to deepen their understanding of the growing field of food law, Tommy Tobin, an attorney in the firm’s Food Litigation practice, has edited the treatise Food Law: A Practical Guide. Written by practicing lawyers, including leading Perkins Coie attorneys, for practicing lawyers, the book aims to provide an introduction to how different areas of law and legal practice intersect with food, with information that is both practical and actionable.

As noted in the book, “food litigation has quickly become a distinct practice area in commercial litigation, with the plaintiffs’ bar increasingly targeting the industry, law firms establishing practice teams focusing on these matters, and even law schools offering courses on the subject,” and “this growing field sees no signs of slowing down in the years ahead.”

Chapters include “Food Litigation: An Emerging Field,” “Reasoning with the Reasonable Consumer Standard in Food Litigation,” and “Food Law and the Pandemic: Securing the Food System.” The book was published by the American Bar Association.

To learn more about the book, please visit the American Bar Association’s website, or contact Tommy Tobin.

Consumers and brands are well aware of the benefits of environmentally friendly products. A recent report found that nearly 89% of brands implementing sustainability initiatives see an improvement in brand reputation. However, brands should take care to comply with applicable state and federal guidance and legal requirements, as regulators, competitors, and class action attorneys continue to scrutinize eco-friendly marketing. For example, the FTC’s “Green Guides” warn marketers against making broad and unqualified environmental claims, such as “eco-friendly” or “green,” which may convey multiple meanings to consumers. While marketers should take care with all environmental claims, we draw on recent litigation and enforcement trends to bring you the following best practices for making certain common claims: “recyclable,” “biodegradable,” and “sustainable” sourcing.

Read more in this Perkins Coie Update: Sustainability Advertising: Key Takeaways

From investors and shareholders to customers and employees, key stakeholders are increasingly demanding both corporate action and broad-based public disclosure of environmental, social, and governance (ESG) issues. As corporations take action and report on their ESG challenges and achievements, they will be well served to take steps to mitigate the risks of both regulatory enforcement and private litigation.  To mitigate the risks associated with ESG claims, companies might consider how their policies and procedures address the adequacy of disclosures to shareholders on ESG topics, substantiation of ESG claims with appropriate documentation, and the bounds of aspirational and similar ESG statements.

Read more in this Perkins Coie Update: ESG Claims in an Era of Heightened Regulatory and Litigation Risks.