PC Food Litigation Index: August 2019

As of August 2019, overall food litigation filings are on pace with those of last year. California and New York remain the two most popular jurisdictions for food litigation matters.  While California filings in 2019 are approximately the same as this time last year, we note that about 40% of total California filings occurred between September and December 2018.  So far this year, we have also noticed an uptick in filings in the District of Columbia.  While filings in the District were a small part of the overall total in 2018, food-related filings in this jurisdiction are currently exceeding those of larger jurisdictions, including Florida, Illinois, and Missouri.

Regarding types of matters, false labeling cases have far outstripped those of other categories.  Compared with August 2018, food-related false advertising claims have increased nearly 60%.  Filings for “all natural” and slack-fill claims have fallen compared to August 2018, with fewer than 20 new cases filed in 2019 from both categories combined.  Even so, we are tracking a number of important trends regarding “all natural” claims, including several cases alleging that the presence of malic acid or other materials render product labeling regarding “naturally flavored” false or misleading.  Continue Reading

Industry Insight: Mississippi Reverses Course on Plant-Based Meat Alternative Labeling

As we reported in July 2019, many states have enacted laws related to the labeling of meat alternative products and limiting their use of meat-like descriptors like burgers or hot dogs. One such law recently took effect in Mississippi.

Mississippi’s law, S.B. 2922, provided that a plant-based, insect-based, or cell-cultured food product “shall not be labeled as meat or a meat food product” and even imposed potential criminal sanctions for doing so. Just a few weeks after it went into effect, the state has promulgated draft regulations that appear to create a substantial carve-out for plant-based foods. The draft regulations are notable for what is included and omitted from this significant carve out. Continue Reading

Industry Insights: Putting “Pure” Claims in Context

In recent years, we have tracked numerous cases that claimed food products marketed as “pure” did not have the marketed levels of purity. From water to cheese to honey products, “pure” claims have led to challenges in federal and state courts around the country.

Many suits alleged that trace amounts of synthetic chemicals or pesticides render products impure or otherwise not 100% “natural.” Recently, a consumers’ association sued a tea manufacturer, alleging that the tea showed trace amounts of synthetic molecules, including glyphosate, even though it was marketed as “100% Natural” and “Pure.” Honey manufacturers have faced several similar suits, which alleged that honey containing trace amounts of pesticides, particularly glyphosate, is not “100% Pure.” Continue Reading

Industry Insights: FDA Sends First Warning Letter Under Recent Rule Regarding Imported Food

The Food Safety Modernization Act (“FSMA”) ushered in a sea change in the government’s regulation of food safety. Pursuant to FSMA, the FDA has promulgated a series of rules, including a 2015 rule related to the Foreign Supplier Verification Programs (the “FSVP Rule”). These programs set forth certain requirements to ensure food safety and appropriate labeling for food imported into the United States. The FSVP Rule requires that importers verify that the food they import into the United States has been produced in a manner that meets applicable U.S. food safety standards.

Just this week, the FDA announced the issuance of its first warning letter under the FSVP Rule. The warning letter was sent to an importer of tahini, which was implicated in a Salmonella outbreak earlier this year. The tahini was recalled after four illnesses were reported. Per a statement attributed to Acting Commissioner Ned Sharpless, “The warning letter follows an FDA inspection conducted in response to a recent Salmonella outbreak, which revealed that the importer was not in compliance with the FSVP.” Continue Reading

PC Food Litigation Index: July 2019

July was a hot month in food litigation. There were twenty-eight new filings, which puts total new food litigation filings at about 100 in 2019.  More than half of the new filings were in California state and federal court, with several new filings in D.C. Superior Court and federal court in Illinois and Florida.

Plaintiffs in several new cases allege that defendant’s foods or beverages contain heavy metals, and defendants had a duty to disclose the presence of those metals to consumers.  In Labajo v. Welch Foods, Inc., 5:19-cv-01306 (C.D. Cal.), for example, the plaintiff alleges that Welch Foods fails to warn individuals that Welch’s White Grape Juice and Concord Grape Juice products expose consumers to heightened levels of heavy metals.  Plaintiffs allege Welch’s has a duty to disclose that the products contain metals independent of any duty imposed by Proposition 65.  Likewise, in Arellano v. Mead Johnson Nutrition Co., 2:19-cv-06462 (C.D. Cal.), plaintiff alleges that testing has found Mead Johnson’s Enfamil Premium infant formula contains high levels of the contaminants arsenic, cadmium, lead and mercury, noting that the levels of lead are above the USFDA Provisional Tolerable Intake Level for children six years and under.   Continue Reading

Industry Insights: Outgoing FDA Commissioner Proposes Expedited Steps for Approval of CBD

On July 31, Dr. Scott Gottlieb, the outgoing FDA commissioner, published an editorial in which he proposed how the FDA could expedite approval of food and beverage products that contain cannabidiol (CBD).           

In this update, we review Dr. Gottlieb’s proposal which highlights areas of concern for business involved in the CBD industry, such as labeling and deceptive marketing. Read more here.

Industry Insights: States Have Beef With Labeling of Meat Alternatives

Across the country, states are enacting laws related to the labeling of meat alternative products. Missouri, Mississippi, Arkansas, and Louisiana have passed laws restricting the ability of vegetable-based proteins and other meat alternatives from labeling their products as burgers, hot dogs, sausage, or other meat-like descriptions.

Proponents of the laws argue that the laws are essential for protecting “consumers from being misled or confused by false or misleading labeling of agricultural products that are edible by humans.” These laws have drawn several federal lawsuits so far and will likely be the subject of further controversy. Continue Reading

PC Food Litigation Index: May 2019

There were seventeen new cases filed in May, putting total filings for the year at seventy-two. By this time last year, plaintiffs had filed sixty-nine food and beverage cases. Most of the new filings were in California, with a few in New York and one in Missouri. All seventeen of the new cases were false labeling cases.

In a continued expansion of the “sustainability/human rights” cases, several tuna companies were sued in the Northern District of California for allegedly misleading consumers about whether their tuna is dolphin safe. Plaintiffs allege that the tuna suppliers use fishing tactics that can be harmful to dolphins, rendering their “Dolphin Safe” labels misleading under California law and similar laws from all fifty states. These cases evoke similar human rights supply chain cases pursued, largely without success, in the last few years in the Ninth Circuit including the Chipotle GMO supply chain case, Schneider v. Chipotle Mexica Grill, Inc., and the recent Ninth Circuit omissions case, Hodsdon v. Mars.

Other cases of note include DiGregorio v. Kellogg Sales Company, a Northern District of New York case alleging that Kellogg misleadingly marketed high-sugar cereals as healthy. This case mirrors Hadley v. Kellogg Sales Co., which currently pending in the Northern District of California. Plaintiffs in Hadley and DiGregorio make the same claims and are represented by the same plaintiffs’ counsel. Continue Reading

Industry Insights: Coffee Products Exempted from Proposition 65

On Monday, June 3rd, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. The rule states that: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”  OEHHA announced the approval of the coffee exemption regulation on Twitter and confirmed that the new rule will take effect on October 1, 2019.

Continue Reading

Industry Insights: FDA Considers Pathway for Legalizing CBD at Public Hearing

The CBD industry is widespread and very lucrative, but the FDA has sent mixed messages regarding CBD use. On the one hand, the FDA has stated that CBD is “unsafe” and not an approved additive to food, beverages and supplements; on the other hand, the FDA has not taken a single enforcement action against a company for marketing CBD-related products.

In a public hearing on May 31, 2019, the FDA gathered information in order to help develop a pathway forward to a coherent policy regarding CBDs.

In this update, we outline the takeaways from the public hearing and how clear regulatory guidelines regarding CBD products will help encourage additional investment and growth in the CBD market. Read More.

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