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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Carolyn Winans v. Ornua Foods North America Inc., No. 2:23-cv-01198-FB-RML (E.D.N.Y. – April 23, 2024): The Eastern District of New York trimmed a putative class action complaint alleging the labeling and marketing of defendant’s Pure Irish Butter as “pure” was false or misleading because it contains per-and-polyfluoroalkyl substances (PFAS). The Court dismissed plaintiff’s claim seeking injunctive relief, finding plaintiff lacked standing to seek this form of relief because she was unlikely to be injured from the purported mislabeling again in the future. The Court concluded it plausible that a reasonable consumer reading the label could conclude that the word “pure” indicates the absence of contaminants, such as PFAS. The Court declined to adopt defendant’s contention that the phrase “pure Irish butter” was not misleading since the term “pure” qualifies “Irish,” not the dairy product itself. Opinion can be viewed here.

In re Kind LLC “Healthy and All Natural” Litigation, No. 22-2684-cv (2nd Cir. – May 2, 2024): The Second Circuit affirmed summary judgment in a putative class action challenging the phrase “All Natural” on the labels of defendant’s granola bar products as deceptive and misleading. Plaintiffs argued that the trial court had erred in excluding the findings of two of their experts. The appellate court concluded that the trial court did not abuse its discretion in excluding the expert reports and affirmed the lower court’s finding that plaintiff had failed to present admissible evidence of what a reasonable consumer would expect of products labeled “All Natural.” 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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Candice Bradby v. Bimbo Bakeries USA, Inc., No. 1:23-cv-00522-LKG (D. Md. – April 12, 2024): The District of Maryland dismissed a putative class action challenging the marketing and labeling of defendant’s All Butter Loaf Cake as misleading. Plaintiff argued the “All Butter” representations leads reasonable consumers to believe the cake will contain butter as its main shortening ingredient and that the taste will only be from butter when the product’s flavor is actually derived in part from other ingredients. The Court reasoned that plaintiff failed to plausibly argue sufficient facts to show that the “All Butter” representation would mislead a reasonable consumer and noted that the ingredient list on the back of the packaging discloses all the ingredients contained in the product, including “artificial flavors.”  As a separate basis, the Court also found that the federal Food, Drug, & Cosmetics Act and its implementing regulations preempted plaintiff’s state law claims. Opinion can be viewed here.

Mark Hayden v. Bob’s Red Mill Natural Foods, Inc., No. 4:23-cv-03862-HSG (N.D. Cal. – April 16, 2024): The Northern District of California trimmed a putative class action alleging the marketing and labeling of defendant’s flaxseed meal products are misleading. Plaintiff alleged that the products’ representations prompted consumers to have the net impression of healthfulness when the products allegedly contain cadmium. While the Court concluded that plaintiff had Article III standing to pursue claims against the company, the Court concluded that plaintiff had not adequately alleged that a disclosure of the products’ purported cadmium levels would be contrary to the net impression of healthiness supposedly generated by the challenged representations. The Court further concluded that the plaintiff had not established that the cadmium levels in the products created an unreasonable safety hazard or are unsafe for consumption. Note: Perkins Coie LLP represents Bob’s Red Mill Natural Foods, Inc. 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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Shamea Broussard, et al. v. Dole Packaged Foods, LLC, No. 3:23-cv-03320  (N.D. Cal. – April 8, 2024): The Northern District of California dismissed without prejudice a putative class action alleging the labeling and marketing of defendant’s fruit bowls, fridge packs, canned fruit, canned juices, and certain beverages as nutritious and healthy misleads consumers because the products contain sugar levels beyond daily recommendations set by the American Heart Association. The Court concluded the challenged statements such as “a promise to provide everyone, everywhere with good nutrition” and that the products “seal in goodness and nutrition” amounted to puffery and would not deceive a reasonable consumer. Opinion can be viewed here.

Patricia Donadio v. Bayer HealthCare LLC, No. 6:22-cv-0652-EAW  (W.D.N.Y. – March 18, 2024): The Western District of New York dismissed without leave to amend a putative class action challenging the marketing and labeling of an over-the-counter severe cold medication with the phrase “Honey Lemon Zest,” accompanied by images of a lemon wedge and a honey dipper. Plaintiff alleged that the marketing gave consumers the impression that the medicine contains “honey and lemon ingredients beyond a de minimis amount.” The Court noted that the packaging does not explicitly claim that the medicine is “made with” or “made from” honey, lemon, or lemon zest. Ultimately, the Court concluded a reasonable consumer would not think that the product actually contains honey and lemon because the labeling conveys that the product is honey and lemon flavored, and the lists of active and inactive ingredients do not include lemon or honey. 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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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.