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.

We are pleased to publish the latest version our quarterly Food and CPG Legal Trends report. This report is a bite-sized version of our annual year in review, providing timely insights on legal trends in the space.

In Q4 2023, the CPG industry continued to face a meaningful threat of class-action activity, with continued filings against companies in the food, beverage, and personal care space. Recent months have also seen significant regulatory developments relevant to food, beverage, and CPG companies on both a federal and state levels. Read the full report here.

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

  • National Association of Wheat Growers, et al. v. Rob Bonta, No. 20-16758 (9th Cir.—November 7, 2023): The U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in the plaintiffs’ favor. The panel held that California cannot enforce proposed Proposition 65 carcinogen warning labels on products containing glyphosate. The panel’s majority concluded that these warning labels were not purely factual and uncontroversial and were subject to intermediate scrutiny. The majority noted that the warning labels would require the plaintiffs to convey a controversial, fiercely contested message with which they fundamentally disagree. Applying intermediate scrutiny, the panel concluded that the proposed warnings were not narrowly drawn to advance California’s interests, and the state had less burdensome ways to convey the intended message rather than compelling the proposed warning label. Opinion linked here.
  • Tawneya Houser v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, No. 4:21-cv-09390-JST (N.D. Cal.—November 3, 2023): The Northern District of California dismissed a putative class action alleging that the labeling of the defendant’s over-the-counter cold sore treatment was false or misleading because of representations that would lead reasonable consumers to believe that the treatment would typically heal cold sores in 2.5 days. The court concluded that the representation “You Can Get Rid Of Your Cold Sore In 2 ½ Days*” was not likely to mislead a reasonable consumer because (1) the term “can” denotes possibility, not probability, and (2) even if the representation were misleading, a corresponding disclaimer eliminates any doubt as to its meaning. 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.

On December 7, U.S. Representative Greg Pence (R-IN) introduced the Innovative Feed Enhancement and Economic Development Act of 2023 (the Innovative FEED Act). Sen. Roger Marshall (R-KS) introduced the Senate version of the bill earlier this year.

The bill would amend the Federal Food, Drug, and Cosmetic Act (FDCA) to establish a regulatory pathway for zootechnical animal food substances, a new category of animal feed substances. The bill’s proponents argue that the legislation is necessary to move such substances out of the FDA’s animal drug approval process and improve the competitive environment for these products.

Currently, FDA’s Center for Veterinary Medicine (CVM) considers certain animal foods regulated as drugs under its Policy and Procedures Manual (PPM) 1240.3605, Regulating Animal Foods With Drug Claims. Under this policy, CVM considers the intended use of the product to determine whether the product should be regulated as a food or as a drug. Pursuant to the policy, certain ingredients making production claims or structure/function claims are usually regulated as drugs. Under the proposed bill, FDA would instead regulate zootechnical animal food substances as food additives.

The proposed bill would amend the FDCA to define a zootechnical animal food substance, in part, as a substance added to the food or drinking water of animals that would alter the animal’s gastrointestinal (GI) microbiome by acting solely within the GI tract of the animal. The category would exclude, among other things, hormones and substances used in the diagnosis, cure, mitigation, treatment, or prevention of disease in an animal.

The House of Representatives referred the bill to the House Committee on Energy and Commerce. The House version has 17 cosponsors, including 15 Republicans and two Democratic members. Senator Marshall’s Senate version has six cosponsors: Senators Tammy Baldwin (D-WI), Jerry Moran (R-KS), Michael Bennet (D-CO), Rand Paul (R-KY), Susan Collins (R-ME), and Amy Klobuchar (D-MN). The text of the bill is available here.

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

Carol Whyble, et al. v. The Nature’s Bounty Co., No. 7:20-cv-03257-NSR (S.D.N.Y.—October 31, 2023): The U.S. District Court for the Southern District of New York dismissed a putative class action challenging the labeling and marketing of the defendant’s joint health dietary supplement products containing glucosamine hydrochloride. Specifically, the plaintiffs challenged the products’ joint health representations, arguing that clinical studies have “found no causal relationship between ingesting glucosamine and joint health.” The court found that the plaintiffs did not plausibly allege the products are “deceptive,” as the scientific studies cited demonstrate the effectiveness of at least one of the products’ ingredients for a few categories of individuals. Therefore, the plaintiffs could not plausibly allege that the claims related to the products’ joint health benefits are false, misleading, or deceptive. Opinion linked here.

Alexis Slaten v. Christian Dior Perfumes, LLC, No. 3:23-cv-00409-JSC (N.D. Cal.—October 19, 2023): The U.S. District Court for the Northern District of California dismissed a putative class action challenging the labeling and marketing of certain cosmetic products. Specifically, the plaintiff alleged that the representation of “24H” applied to the products’ sunscreen benefits. The court held that the plaintiff failed to plausibly plead the labeling was false or misleading to reasonable consumers when reading the product labeling as a whole. Specifically, the court concluded that no reasonable consumer could interpret the front labels’ “24H” representation as applying to the products’ sunscreen benefits because the products’ packaging provided directions to “reapply at least every 2 hours” on the back panel. 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.

In November 2023, Senator Deb Fischer (R-NE), a cattle rancher, introduced the Real Marketing Edible Artificials Truthfully Act of 2023, also known as the “Real MEAT Act.” The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

According to the bill’s text, the proposal is intended to allow consumers to “make informed decisions in choosing between meat products such as beef and imitation meat products.” Senator Fischer’s proposal would implement enforcement risks for “imitation meat” products. Among other things, the bill would require the word “imitation” be added to the name of imitation meat food products that do not contain meat ingredients “harvested in a traditional matter” (a phrase that is not further defined under the bill).

This is not the first time Senator Fischer has introduced the Real MEAT Act. In 2019, Senator Fischer introduced a largely similar version of the bill, which was cosponsored by Senator Catherine Cortez Masto (D-NV) and former Senators Ben Sasse (R-NE) and James Inhofe (R-OK), but the 2019 bill did not advance past committee.

Perkins Coie’s food regulatory team continues to track legislative developments at the federal and state levels affecting meat products and innovative foods.