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

• Elena Nacarino, et al. v. Kashi Company and Molly Brown, et al. v. Kellogg Company, Nos. 22-15377 and 22-15658 (9th Cir. – August 14, 2023): The Ninth Circuit granted dismissal of two putative class actions alleging defendants misleadingly advertised the protein content contained in its cereal and veggie burger products. The panel held that plaintiffs’ claims failed, reasoning that the protein content claims on the front of the packages complied with federal regulations. The appellate court found that the plaintiff’s state-law claims sought to impose different requirements from those prescribed by federal law, and therefore the state law claims were preempted. The Ninth Circuit wrote: “FDA regulations specifically allow manufacturers to measure protein quantity using the nitrogen method, to display that value in the Nutritional Facts Panel, and to use it to make a quantitative nutrient content claim.”  Opinion linked here.

• Craig Wiggins v. Unilever U.S. Inc. dba Dove, No. 1:21-cv-01964-PGG (S.D.N.Y. – July 26, 2023): The Southern District of New York court granted dismissal of a putative class action alleging defendant’s cosmetic washes and shampoos are not “hypoallergenic” as claimed on the products’ labels. The court held that plaintiff’s claim failed, because they failed to plausibly allege that the chemicals they cite cause allergic reactions and eye irritation as to render the challenged labels false and misleading. Leave to amend was granted to allow plaintiff to further substantiate the allegations. Opinion linked here.

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

• Kenneth Telesco v. Starbucks Corp., No. 7:22-cv-02687-NSR (S.D.N.Y. – July 18, 2023): The Southern District of New York granted dismissal of a putative class action alleging defendant misled consumers into believing that a package of its cold brew coffee concentrate yields eight servings when it actually only yields five. The court held that plaintiff’s claim failed because a reasonable consumer would not be misled by the labeling instructions for the product’s preparation and, consequently, the expected yield. The court highlighted that the label clearly states it is a 32-ounce container, which following the 1:1 ratio on the label’s instructions, means that it would produce 64 ounces of coffee. The court added that the reasonable consumer test for false advertising claims “is not based on the ‘least sophisticated consumer’ who is unable to perform simple math.” Opinion linked here.
• Anthony Moreno v. Vi-Jon, LLC, No. 3:20-cv-01446-JM-BGS (S.D. Cal. – July 18, 2023): The Southern District of California granted dismissal of a fourth amended complaint in a putative class action alleging defendant’s hand sanitizers contain labels that misrepresent their ability to kill germs. The court held that plaintiff failed to plausibly allege that a reasonable consumer would be misled by the product’s labeling into thinking that the products kill 99.99% of all germs in existence. Instead, a reasonable consumer would not ignore the labeling’s asterisk leading them to a disclosure on the back panel clarifying that the hand sanitizer is effective at eliminating 99.99% of many common harmful germs. The court denied further leave to amend. Opinion linked here.

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

• Tara Amado v. The Procter & Gamble Co., No. 3:22-cv-05427-MMC (N.D. Cal. – June 8, 2023): The Northern District of California granted dismissal of a putative class action alleging defendant’s fiber-powder dietary supplement is not heart healthy as represented due to the amount of sugar it contains.The court held that plaintiff’s allegations failed as the numerous studies that plaintiff relied upon failed to support them. Further, the court ruled that plaintiff’s claims were preempted because the challenged claims were structure/function representations since they discuss the general effects of fiber on the human body, not the product at issue specifically. Opinion linked here.

• Beth Peacock Muller v. Blue Diamond Growers, No. 4:22-cv-00707-RWS (E.D. Mo. – July 18, 2023): The Eastern District of Missouri court dismissed a putative class action alleging defendant deceived consumers by describing the flavor of its packaged almonds as “smokehouse” when in fact the flavor comes from artificial liquid smoke. The court held that the plaintiff’s consumer protection claim failed, finding that a reasonable consumer would not plausibly be misled by the challenged labeling statements, reasoning that the ingredient listing of “natural hickory smoke flavor” would cure any ambiguity. The court also noted that the product’s labeling did not describe the almonds as “smoked.” Opinion linked here.

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

• Kristie Brownell v. Starbucks Coffee Co., No. 5:22-cv-01199-FJS-ATB (N.D.N.Y. – July 12, 2023): The Northern District of New York granted dismissal of a putative class action alleging defendant marketed and labeled its coffee beans as being made entirely with Arabica coffee beans when lab testing revealed elevated potassium levels. The court held that plaintiff’s claim failed, stating that a reasonable consumer would not be misled by the challenged labeling statements and would not see “100% Arabica Coffee” and take it to mean that the product was nothing but coffee beans without any vitamins or minerals added. The plaintiff failed to provide any proof that the products had undergone any testing to support the elevated potassium claims. Further, the court found that the descriptor “Arabica” indicates only the plant from which the coffee was harvested. Opinion linked here.

• Caryn Ash v. PSP Distribution, LLC, et al., No. 2019 CH-13116 (Ill. App. Ct. – June 12, 2023): An Illinois state appeals court affirmed dismissal of a putative class action alleging defendant misled the public by including whole flaxseed in its canned cat food when “ground flaxseed” was listed as an ingredient on the product’s web page. The panel found that no reasonable consumer would consider the disclosure of “ground flaxseed” to imply the absence of other forms of flaxseed. Indeed, the plaintiff made claims that whole flaxseed was detrimental to the health of cats yet lacked any support or evidence for that statement. Nor did the plaintiff successfully show that the inclusion of one form of flaxseed therefore excluded other forms. The court found that, even under the expanded protection of the Illinois Consumer Fraud Act, plaintiff’s allegations failed to support her assertion that the flaxseed distinction would be material to a reasonable consumer’s purchasing decision. Opinion linked here.

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

• Magdalena Bojko, et al. v. Pierre Fabre USA Inc., No. 22-cv-06728 (N.D. Ill. – June 27, 2023): The Northern District of Illinois trimmed a lawsuit involving dry shampoo products allegedly contaminated with the carcinogen benzene. Addressing standing, the court held the plaintiffs had alleged an injury; even though they had not alleged the products they purchased contained benzene—they had at least alleged a study found the types of products they purchased included benzene. Next, the court held plaintiffs’ claims based on the omission of benzene from the ingredient list were preempted because benzene is a contaminant, not an ingredient. The court also dismissed claims based on affirmative representations because the products made no representations that suggest the absence of contaminants (e.g., “safe,” “lab tested,” “benzene free”). The court tossed plaintiffs’ lack-of-warning claims because they had not alleged with particularity that defendant knew the product contained benzene. Lastly, the court dismissed plaintiffs’ warranty claims for pleading failures. Claims that the product was “adulterated” in violation of Illinois state law and federal law were allowed to proceed. Opinion linked here.

• Rosita English v. Danone N.A. Public Benefit Corp., No. 7:22-cv-05105-VB (S.D.N.Y. – June 26, 2023): The Southern District of New York dismissed with prejudice a putative class action alleging the marketing of a coffee creamer product misleads consumers into believing the product contains cream from dairy ingredients when defendant’s coffee creamer purportedly contains no cream or dairy ingredients. The court held that because plaintiff bought the product in Texas, she failed to state a claim under the New York General Business Law, nor did she specify the Texas Business and Commerce Code under which she was bringing the suit. The court ruled that because plaintiff is a Texas citizen and failed to state a claim for a product she actually purchased in Texas, plaintiff did not plausibly allege injury or fraudulent intent and lacked standing to assert claims under other states’ consumer protection laws. Opinion linked here.

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

• Darlene Hollins, et al. v. Walmart, Inc., et al., No. 21-56031 (9th Cir. – May 11, 2023): The Ninth Circuit affirmed the Central District of California’s order granting summary judgment in a consumer class action challenging the labeling of glucosamine sulfate supplements. The plaintiffs argued the supplements had a different chemical composition than advertised. The panel upheld the district court’s ruling that plaintiff’s state-law claims were preempted by federal law because plaintiffs’ own expert witness’ testing methods were not accepted by the FDA to validate label claims or reflect ingredients’ common or usual names. Opinion linked here.
• Keith Carroll, et al. v. The J.M. Smucker Co., No. 3:22-cv-08952-WHA (N.D. Cal. – June 15, 2023): The Northern District of California dismissed a putative class action alleging that the company’s website violated the Video Privacy Protection Act (VPPA), enacted to prohibit the wrongful disclosure of video tape rental or sale records, by implementing data tracking technology on its website, which collects information about website. The court dismissed the case on personal jurisdiction grounds, finding significant jurisdictional deficiencies and a failure to tie the challenged conduct to California. Opinion linked here.
  

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

Sean McGinity v. The Procter & Gamble Company, No. 22-15080 (9th Cir. – June 9, 2023): The United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a putative class action alleging the statement “Nature Fusion” on defendant’s packaging of its shampoo mislead consumers into believing that the products are natural, when in fact, they contain non-natural and synthetic ingredients. The court held that plaintiff’s claim failed, reasoning that the statement “Nature Fusion” is not misleading but rather is ambiguous, and that a reasonable consumer would expect that the ingredient list will contain more detailed information about the product that would confirm representations made on the packaging. Plaintiff is represented by Reese LLP. Opinion linked here.

Christine Bischoff v. Albertsons Companies, Inc., et al., No. 7:22-cv-4961 (S.D.N.Y. – June 26, 2023): The Southern District of New York granted dismissal of a putative class action alleging the statement “Rapid Release” on defendant’s packaging of its over-the-counter acetaminophen gelcaps mislead consumers as the product does not work faster than their other lower-cost acetaminophen products. The court found that plaintiff’s claims are preempted by federal law. The court agreed with defendant’s argument that the products satisfy standards for immediate release acetaminophen tablets incorporated in a monograph and dismissed plaintiff’s state law claims for violations of New York’s GBL § 349 and § 350 on the same grounds. Opinion linked here.