Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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In Re Plum Baby Food Litigation, No. 4:21-CV-00913-YGR (N.D. Cal. – March 28, 2024):  The Northern District of California granted summary judgment in an action challenging defendant’s baby food products regarding allegedly undisclosed heavy metals. Applying Ninth Circuit law, the Court concluded that plaintiffs had not established that the allegedly undisclosed heavy metals constituted an unreasonable safety hazard or affected the product’s central function. The Court further reasoned that the theory that regular consumption of the baby food products over a period of time could lead to potentially dangerous accumulations of these substances was “conjectural.” In addition, the Court determined that the non-disclosure of trace heavy metals on the products’ labels did not violate the consumer protection laws of California, New York, Illinois, Minnesota, or Pennsylvania, as Plum had no such duty under of the laws of those states given their failures of proof. Among other things, the court noted (i) since 2017 the company had disclosed on its own website that the products may contain heavy metals and (ii) the topic of heavy metals in baby foods has received widespread media attention. The Court also concluded that plaintiffs had failed to allege that the products were not fit for consumption, writing “no reasonable jury could determine that the presence of heavy metals and perchlorate renders the product incapable of nourishment.” Order can be viewed here. Note: Perkins Coie LLP represented Plum, PBC.

In Re: Recalled Abbott Infant Formula Products Liability Litigation, No. 23-2525  (7th Cir. – April 2, 2024): The Seventh Circuit Court of Appeals upheld the district court’s dismissal of a putative class action involving the voluntary recall of defendant’s powdered infant formula due to unsanitary conditions at one of their facilities. The appeal focused on the issue of standing, specifically whether the plaintiffs suffered an “injury in fact.” The Court concluded that the plaintiffs’ alleged injury was hypothetical or conjectural, and that they did not shown that the products they purchased were actually contaminated. Opinion can be viewed here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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Lindsay Finster v. Sephora USA Inc., No. 6:22-cv-01187 (N.D.N.Y. – March 15, 2024): The Northern District of New York dismissed a putative class action alleging that the marketing and labeling of defendant’s “Clean at Sephora” campaign leads consumers to believe that cosmetics bearing the representation did not contain any ingredients that were synthetic or connected to causing physical harm. The court concluded that plaintiff failed to plausibly allege that defendant materially misled consumers as nowhere on the label or in the marketing materials did defendant make any claim that the products are free of all synthetic or harmful ingredients. The court also concluded that plaintiff had failed to provide adequate pre-suit notice and failed to plead with adequate particularity under Rule 9(b). Opinion available here.

In re Trader Joe’s Company Dark Chocolate Litigation, No. 3:23-cv-00061-RBM-KSC (S.D. Cal. – March 27, 2024): The Southern District of California trimmed a putative class action alleging defendant’s dark chocolate products contain undisclosed lead, cadmium, and arsenic (the “heavy metals”). The court concluded that plaintiffs had plausibly alleged a reasonable consumer could be misled by the lack of any disclosure on the products indicating that they contain heavy metals when they contain the levels of heavy metals based on the allegations. The court noted that it must accept as true that the products actually contain undisclosed heavy metals. The court further reasoned that the determination of what level of heavy metals would be misleading to a reasonable consumer is a question not amenable to resolution on a motion to dismiss, writing that “[t]he court is not inclined to pick a threshold level of each Heavy Metal in each Product at which a reasonable consumer would be misled by the absence of a label disclosing its presence, particularly in ruling on a motion to dismiss.” Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

Selina Valencia v. Snapple Beverage Corp., No. 23-cv-1399 (CS) (S.D.N.Y. – March 18, 2024): The Southern District of New York dismissed a challenge to multiple varieties of beverage products bearing an “All Natural” claim. Plaintiff alleged that the “All Natural” representation was false or misleading because the beverage products also contained vegetable and fruit juice concentrates for color as well as citric acid. The court dismissed, reasoning that plaintiff had not plausibly alleged that a significant portion of reasonable consumers acting reasonably under the circumstances would find the “All Natural” label misleading in this context where the added color is from natural sources. The court further concluded that even if plaintiff’s theory could be credited, that would merely show that the challenged representation was ambiguous, and a reasonable consumer would resolve the ambiguity by reading the ingredient list on the back of the package. Regarding citric acid, the court rejected plaintiff’s argument about citric acid via a fermentation process as somehow being “synthetic,” concluding that “[a] reasonable consumer would not think that a compound found in nature is artificial even if it is produced in a different way than nature produces it, if the way it is produced is that it is derived from a natural product and does not contain anything synthetic.” Because the deficiencies in the pleading would not be cured by amendment, the court granted dismissal with prejudice. Note: Perkins Coie LLP represented Snapple Beverage Corp. Opinion available here.

Deborah Brown, et al. v. Coty Inc., No. 1:22-cv-02696-AT (S.D.N.Y. – March 1, 2024): The Southern District of New York dismissed a putative class action alleging that defendant’s cosmetics products contain synthetic chemicals (PFAS), which can have adverse health effects. Plaintiffs asserted claims under consumer protection laws in seven states, as well as a claim for unjust enrichment under New York law. The court found that plaintiffs failed to allege that they each suffered an injury in fact and granted defendant’s motion to dismiss for lack of standing. The dismissal is without prejudice, and plaintiffs may move for leave to file an amended complaint. Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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John Wertymer v. Walmart, Inc., No. 1:23-cv-14700 (N.D. Ill. – February 22, 2024): The Northern District of Illinois dismissed a putative class action lawsuit challenging defendant’s honey labeled “Organic Raw Honey” and “Raw Honey” as deceptively marketed. Plaintiff claimed that the products are not “Organic,” “Raw,” or “Honey” based on chemical analysis, overheating during processing, and the addition of other sugars. The court found that plaintiff failed to establish what a reasonable consumer would believe about honey and the processing of honey and thus failed to allege how consumers were potentially misled. Opinion available here.

Camila Cabrera v. Bayer Healthcare LLC, et al., No. 2:17-cv-08525-JAK-JPR (C.D. Cal. – February 23, 2024): The Central District of California denied a motion for class certification in a case alleging that the marketing and labeling of defendants’ children’s multivitamin products are false and misleading because the products are labeled as “complete” when they lack vitamin K, vitamin B1, vitamin B2, and vitamin B3. The court found that plaintiff’s deposition testimony is sufficient to show that she is “so uniquely vulnerable” to specific defenses that “it is predictable that this litigation will focus on arguments and facts unique to [her],” so plaintiff is not a typical member of the putative classes and therefore is an inadequate representative. The court also concluded that plaintiff can independently verify the vitamins contained in the products by reviewing the list of ingredients on the labels, so she is unlikely to suffer the same injury again and therefore lacks standing to pursue injunctive relief on behalf of the putative classes. Finally, the court reasoned that because the claims of the proposed classes otherwise clear the requirements for class certification, the court would entertain a motion to amend the operative complaint to change the named plaintiff. Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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Nancy McCoy v. Nestlé USA, Inc., No. 3:23-cv-02218-MCR-HTC (N.D. Fla. – February 1, 2024): The Northern District of Florida dismissed a complaint with prejudice in putative class action alleging the labeling of defendant’s lime flavored carbonated mineral water misleads consumersinto expecting the water would contain an appreciable amount of lime juice because the label depicts two wedges of fresh lime and the word ‘lime,’ in a green-tinted bottle, when in fact it contains “natural flavors.” The court concluded that plaintiff failed to plausibly allege that a reasonable consumer would believe that the product contained an appreciable amount of lime. The court reasoned that the label’s use of the word “lime” and depiction of lime wedges represent only that the product is lime flavored, as the label does not state “made with lime” or use other language conveying that the product includes lime or lime juice. Opinion available here.

Devonia Spearman Ruff v. Perfetti Van Melle USA Inc., No. 2:23-cv-00070-DLB-CJS (E.D. Ky. – January 27, 2024): The Eastern District of Kentucky dismissed an amended complaint in putative class action in which the plaintiff alleged the labeling of defendant’s candies was misleading because a “tree nut free” representation below the ingredients list on the gummies’ package, led her to believe that it did not contain any allergens. However, the candies contained coconut oil. While the court acknowledged FDA considers coconut to be a tree nut, the court concluded that it would be unreasonable for the plaintiff to have relied solely upon the “tree nut free” representation when she, by her own admission, carefully reviews the back-of-pack ingredient lists for potential allergens. Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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  • Anne de Lacour, et al. v. Colgate-Palmolive Co. and Tom’s of Maine Inc., No. 1:16-cv-08364-KMW (S.D.N.Y. – January 3, 2024): The Southern District of New York granted defendants’ summary judgment and motion for class de-certification in a class action challenging the use of the word “natural” by defendants on the labels of their toothpaste and deodorant products because the products allegedly contain artificial and/or chemically processed ingredients. The court concluded that the evidence the plaintiffs offered to support their theory of deception was either inadmissible or insufficient to establish a reasonable consumer’s understanding of the term “natural.” The court reasoned that the words “natural” and “artificial” were ambiguous with several possible interpretations, and that plaintiffs failed “to produce evidence that a reasonable consumer interprets ‘natural’ in the manner plaintiffs allege, therefore, there is no triable issue of fact as to deception.” Opinion available here.
  • Erin Edwards v. Johnsonville LLC, No. 1:23-cv-01107 (N.D. Ill. – February 1, 2024): The Northern District of Illinois dismissed a complaint in putative class action alleging the labeling of defendant’s bratwurst products misleads consumers with representations that the products are “Made with 100% Premium Pork”, when they are encased in beef collagen. The court found that plaintiff’s claims of deception and misrepresentation are preempted because the products’ labeling passed the USDA’s pre-approval process and were preempted under the Federal Meat Inspection Act (“FMIA”). Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

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On February 15, a bipartisan group of five Congressional Representatives introduced the Pet Food Uniform Regulatory Reform Act of 2024 (the PURR Act) in the U.S. House.

Currently, the FDA’s regulation of pet foods is similar to that of other animal foods. The federal Food, Drug, and Cosmetic Act (FD&C Act) requires that all animal foods are safe to eat, produced under sanitary conditions, contain no harmful substances, and are truthfully labeled. The current regulatory framework around pet food manufacture and sale is a two-tiered system, with both federal and state requirements addressing issues ranging from ingredient approvals to labeling requirements.

The proposed PURR Act establishes new federal rules for the regulation of pet food for “companion animals,” consisting exclusively of domestic dogs and cats. In announcing the bill, the legislation’s supporters argued it would “replace the current inefficient patchwork approach between states and the federal government with consistent national standards that are predictable, clearly defined, and encourage innovation and speed to market.”

The proposed bill would amend the FD&C Act to, among other things, permit the use of certain marketing terms on pet food products without premarket approval by the FDA so long as they are truthful and not misleading. Popular marketing terms in this context include “hairball control,” “tartar control,” “human-grade,” and “natural.” The legislation would also require the FDA’s Center for Veterinary Medicine to perform science-based reviews of pet food ingredient submissions and provide annual reports to Congress on these reviews, as well as initial guidance and regulations promulgated pursuant to the PURR Act. To address perceived issues with the two-tiered regulatory system, the bill would preempt any state from enacting requirements “relating to the marketing or labeling of pet food.”

The House of Representatives referred the bill to the House Committee on Energy and Commerce. Rep. Jake LaTurner (R-KY) sponsored the bill, along with four bipartisan cosponsors: Reps. Steve Womack (R-AR), Henry Cuellar (D-TX), Sharice Davids (D-KS), and Josh Harder (D-CA). The text of the bill is available here.

Perkins Coie is pleased to announce the launch of our eighth annual Food & Consumer Packaged Goods Litigation Year in Review. Accompanying the 2023 report are infographics that highlight key litigation outcomes, filing data, and industry trends. As always, the report offers a summary of the past year’s key litigation outcomes, regulatory developments, and filing data using metrics from our proprietary database, developed by our food and consumer packaged goods (CPG) litigation team in order to track and understand trends in this growing area.

Attorneys in Perkins Coie’s Food Litigation practice have defended false labeling cases across a broad range of products and industries. As our practice area has expanded, we have continued to pay close attention to the litigation environment for emerging trends, important developments in case law, and related regulatory guidance across CPG product categories, including personal care products, pet food, cannabis products, and supplements. We use this real-time tracking to help advise clients on risk and develop effective defense strategies for companies facing class litigation. This data further informs the national conversation on the growing area of food law, including law school courses and media coverage.

In 2023, the drumbeat of class actions filed against the CPG industry remained constant. Filings maintained a sustained pace and continued aggressiveness in search of new theories of liability. We also saw plaintiffs’ lawyers returning to seemingly dormant theories, attacking, for example, “natural” claims on food and personal care products with renewed vigor.

Perkins Coie has been a leader in defending food and CPG litigation cases, securing favorable, precedent-setting results for its clients. The nationally recognized Retail & Consumer Products industry group includes attorneys focused on food and beverage and consumer packaged goods. Our food litigation team is regularly called upon to comment on national trends driving the industry, including in trade publications and national media outlets.

Read the report here.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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  • Deena Indiviglio v. B&G Foods, Inc., No. 7:22-cv-09545-VB (S.D.N.Y. – December 29, 2023): The U.S. District Court for the Southern District of New York dismissed a putative class action challenging the labeling and marketing of defendants’ spreadable fruit as “All Fruit.” Specifically, the plaintiff alleged that the “All Fruit” labeling is false and misleading because neither citric acid nor natural flavor “can reasonably be described as fruit.” The court concluded that the plaintiff’s own definitions of natural flavor and citric acid acknowledged that both may be derived from fruit. Accordingly, the court held that the plaintiff had not adequately alleged the product’s packaging contained any materially false or misleading statements. Opinion available here.
  • Jeffrey Craig, et al. v. American Tuna, Inc., et al., No. 3:22-cv-00473-RSH-MSB (S.D. Cal. – December 21, 2023): The U.S. District Court for the Southern District of California denied class certification to a plaintiff who alleged he was misled by defendants’ claims that tuna products are “Caught and Canned in the USA,” and “100% American Made,” when the defendants allegedly catch much of their tuna outside of domestic waters. The court found that the sole remaining plaintiff failed to offer any evidence that he saw the advertisements he now claims were false, or even that he had purchased any of the relevant products. The court noted that the challenged labeling was on products in 2016 and 2017, but the plaintiff alleged he bought the products in 2022 and 2023. The court held that the plaintiff has not shown he has standing to bring the suit at all and ordered the plaintiff to show cause why the action should not be dismissed. Opinion available here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our notable ruling roundup aims to keep our readers up to date on recent rulings in the food & consumer packaged goods space.

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  • Terri Little v. Naturestar North America, LLC, et al., No. 1:22-cv-00232-JLT-EPG (E.D. Cal. – November 29, 2023): The U.S. District Court for the Eastern District of California dismissed a putative class action challenging the labeling and marketing of defendants’ single-use tableware and food storage bagsas “compostable.” Specifically, the plaintiff alleged that the products contained significant amounts of perfluoroalkyl and polyfluoroalkyl substances (PFAS), which are not compostable. The court concluded sua sponte that it lacked subject matter jurisdiction because plaintiff failed to adequately allege diversity of citizenship and failed to allege that there is a sufficient amount in controversy for Class Action Fairness Act (CAFA) jurisdiction. The court dismissed the complaint with leave to amend. Opinion linked here.
  • Charlene Vazquez v. Walmart, Inc., No. 1:22-cv-06215-JPO (S.D.N.Y. – November 29, 2023): The U.S. District Court for the Southern District of New York dismissed a putative class action challenging the labeling of defendant’s Oats & Honey Crunchy Granola Bars. Specifically, the plaintiff alleged that the representations on the product’s labeling were misleading because the product contains a de minimis amount of honey. The court found that contrary to the plaintiff’s claim, a reasonable consumer would not expect that the product consists of “only oats and honey or a limited number of ingredients beyond these two,” but instead a reasonable consumer would likely understand the packaging’s reference to “honey” as a reference to the product’s flavor. The court concluded that because the plaintiff’s allegations do not support a claim of material misrepresentation, none of the causes of action survived the motion to dismiss. Opinion linked here.
  • Lynn Zimmerman, et al. v. L’Oreal USA Inc., No. 22-cv-07609-HSG (N.D. Cal. – December 8, 2023): The U.S. District Court for the Northern District of California trimmed a putative class action challenging purported sunscreen benefit representations on some of the defendant’s cosmetic products. Specifically, the plaintiffs alleged that the representations such as “Up to 24HR Breathable Texture,” “Up to 24H Fresh Wear,” and “Sunscreen Broad Spectrum SPF 25” would lead a reasonable consumer to believe that the product provided 24 hours of sunscreen protection when the products’ sun protection factor (SPF) lasts only two hours. The court noted that the back label instructions directed to “reapply at least every 2 hours for sunscreen use,” but the instructions on at least one of the challenged products were printed underneath a peel-back sticker. The court could not conclude as a matter of law that a reasonable consumer would peel back the sticker on the label in the store prior to purchase, and the court allowed the claim to proceed as to those products. By contrast, where the back label instructions to “reapply at least every 2 hours for sunscreen use” were located directly on the back of the product visible to the consumer prior to purchase, the court concluded the challenged representations were not likely to mislead a reasonable consumer. Opinion linked here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.