Food Litigation Midyear Review

On August 2, 2017, Perkins Coie will be hosting a 60-minute webcast reviewing the key developments and trends in food litigation. This webcast reflects our active monitoring of food litigation filings in jurisdictions nationwide and will include an analysis of the key legal developments in cases involving claims challenging the labeling, composition, and regulatory compliance of food and beverage manufacturers. Additional details and registration information can be found here.

New Filings – June 19, 2017

Hensel v. Andrea’s Fine Foods, Inc., et al., No. 1722-CC01421 (Mo. Cir. Ct. – St. Louis Cnty.): Putative class action alleging violations of Missouri’s Merchandising Practices Act and raising claims of negligent misrepresentation and unjust enrichment. Plaintiff claims that Defendants falsely marketed their pie and pie crust products as “all natural,” although the products contain xanthan gum, a synthetic substance. Continue Reading

New Filings – June 12, 2017

Kao, et al. v. Abbott Laboratories, Inc., No. 3:17-cv-2790 (N.D. Cal.): Putative class action alleging that Defendant misleadingly markets its Similac Advanced Non-GMO baby formula as containing no GMOs when independent testing indicated that the formula contained GMOs.

Stanton v. Sargento Foods Inc., No. 1:16-cv-04578 (N.D. Cal.): Putative class action asserting that Defendant falsely markets their cheese products as “Natural,” even though the cows used to make the products are fed with genetically modified feed and/or given an unnatural recombinant called Bovine Soatotropin (rbST).

Bowling v. Johnson & Johnson, et al., No. 1:17-cv-03982 (S.D.N.Y.): Putative class action asserting Defendants falsely market their “Benecol Spreads”, an alternative to butter, as (1) containing “No Trans Fats” and “No Trans Fatty Acids” and (2) being generally recognized as safe for human consumption. Plaintiff alleges that the spreads contain partially hydrogenated oils, which always contain trans fats and which the FDA has concluded are not generally recognized as safe for human consumption.

Aros v. Kay’s Naturals, Inc., No. RIC-1709554 (Cal. Super. Ct. – Riverside Cnty.): Putative class action, alleging that Defendant advertised its Protein Cookie Bites as healthy and containing all-natural ingredients that are diabetic-friendly even though it contains “evaporated cane juice.”

Preliminary Settlement Approved in Misleading Coconut Water Suit

Ma, et al. v. Harmless Harvest, Inc., No. 2:16-cv-07102 (E.D.N.Y.): The Court preliminary approved a settlement in this putative class action alleging that Defendant labeled its coconut water as “100% organic” and “USDA Organic” and “100% raw” even though it knew its products were not solely made from organic coconuts and were not “raw.”

As part of the settlement, Defendant represented that it had removed all “raw” and “100% Organic” labels from products imported into the United States, although Defendant will continue to label its coconut water as “USDA Organic.” In addition, Defendant agreed to pay an independent consultant to review for a period of two years the labeling on Defendant’s coconut water products to ensure the labels are accurate. Defendant will also pay a settlement administrator up to $350,000 to notify class members of the settlement. And Defendant agreed to pay up to $575,000 to Plaintiffs’ counsel for their attorneys’ fees and costs and up to $20,000 total to the named plaintiffs as an incentive award.

Court Allows Late July Snacks Claims to Proceed

Swearingen v. Late July Snacks, LLC, No. 3:13-cv-04324 (N.D. Cal.): The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative ECJ class action, which alleges violations of California’s CLRA, FAL, and UCL, and a claim for unjust enrichment. Plaintiff alleges that Defendant has misleadingly used the term “evaporated cane juice” on the label of various products, including its Late July’s Classic Saltines Crackers, Classic Rich Crackers, Sea Salt By The Seashore Multigrain Snack Chips, and other varieties of crackers and snack chips. In partially granting the motion, the court held that a reasonable consumer would be deceived by Defendant’s use of the term ECJ on its labeling, its UCL, CLRA, and FAL claims were not preempted by federal law, and further held that Plaintiff satisfied its heightened pleading standard under Rule 9(b). With respect to Plaintiff’s unjust enrichment claim, the court held that because Plaintiff adequately pled reliance on Defendant‘s misrepresentation, it could also state a claim for unjust enrichment. The court dismissed Plaintiff’s nationwide class allegations with leave to amend because it failed to allege that putative class members purchased products outside of California. Finally, the court also dismissed Plaintiff’s request for injunctive relief as it failed to allege that it planned to purchase Defendant’s products in the future.

Court Dismisses ECJ Claims

Swearingen, et al. v. Healthy Beverage, LLC, et al., No. 3:13-cv-04385 (N.D. Cal.): The Court issued an order dismissing this ECJ action, which challenged Defendant’s use of the term “evaporated cane juice” on the ingredient lists for its Steaz Iced Green Tea and Steaz Organic Energy Drinks. The order dismissed with prejudice Plaintiffs’ UCL, FAL, and CLRA claims, which failed to plead reliance, and dismissed its unjust enrichment claim because it was inadequately plead.

New Filings – May 25, 2017

Brumfield, et al. v. Trader Joe’s Company, No. 1:17-cv-03239 (S.D.N.Y.): Putative class action for violation of the Magnuson-Moss Warranty Act, the deceptive acts or practices and false advertising provisions of the GBL, California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties, unjust enrichment, negligent misrepresentation, and fraud. Plaintiffs allege that Defendant falsely markets and sells its Trader Joe’s Black Truffle Flavored Extra Virgin Olive Oil as being flavored by actual black truffles, when it is flavored by an industrially-produced, chemically-derived perfume known as 2,4-dithiapentane.

Jessani, et al. v. Monini North America, Inc., No. 1:17-cv-03257 (S.D.N.Y.): Putative class action for violation of the Magnuson-Moss Warranty Act, the deceptive acts or practices and false advertising provisions of the GBL, California’s CLRA, FAL, and UCL, and raising claims for breach of express and implied warranties, unjust enrichment, negligent misrepresentation, and fraud. Plaintiffs allege that Defendant falsely markets and sells its Monini White Truffle Flavored Extra Virgin Olive Oil and Monini Black Truffle Flavored Extra Virgin Olive Oil as being flavored by actual black truffles, when it is flavored by an industrially-produced, chemically-derived perfume known as 2,4-dithiapentane.

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Food Litigation Year in Review

food-lit-imagePerkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016.  The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing of 140 new class actions and nearly 250 Proposition 65 warning letters aimed at food and beverage companies. This data is broken down by category, reflecting litigation activity covering a wide swath of claims, with persistent filings challenging “natural” claims (including for products containing genetically modified organisms (GMOs)), slack fill, and cases attacking the labeling of foods containing added sugar. The Year in Review also summarizes Proposition 65 regulatory updates and associated litigation risks. Download the Year in Review.

New Filings – April 18, 2017

Shane v. Florida Bottling, Inc., No. 2:17-cv-2197 (C.D. Cal.): Putative class action alleging Defendants misleadingly label and market its juices as “cold pressed” and “fresh pressed” when the juices are actually heat processed (pasteurized).

Painter v. Blue Diamond Growers, No. 2:17-cv-2235 (C.D. Cal.)  Putative class action alleging Defendant falsely markets its almond beverage as being nutritionally equivalent to dairy milk when the beverages allegedly lack many of the essential nutrients and vitamins present in dairy milk.

Casey v. Odwalla, Inc., et al., No. 7:17-cv-2148 (S.D.N.Y.): Copycat putative class action alleging Defendants falsely market and sell their smoothies and protein shakes as containing “No Sugar Added” when similar juice products also do not contain added sugar.

Gomez v. Jelly Belly Candy Company, No. 5:17-cv-0575 (E.D. Cal.)  Putative ECJ class action alleging Defendant falsely markets its “Sport Beans” by failing to list sugar on the product’s ingredient list, while listing evaporated cane juice.

Winn v. Mondelez International, Inc., et al., No. RG17-854671 (Cal. Sup. Ct. – Alameda Cnty.): Putative class action alleging Defendant continued to market and sell its ginger snap cookies, which contain partially hydrogenated oil or trans-fat after the FDA declared trans-fat unsafe for consumers

Dwlatshahi v. McIlenny Company, No. 30-2017-00911222-CU-NP-CXC (Cal. Sup. Ct. – Orange Cnty.): Putative class action for false advertising alleging Defendant deceptively labels its Tabasco brand pepper sauce as being “Made In U.S.A.,” when it contains ingredients made outside the United States.

Perez v. The Kroger Co., No. 2:17-cv-2448 (C.D. Cal.): Copycat putative class action alleging Defendant falsely markets and advertises its apple juice as containing “No Sugar Added” when apple juice allegedly does not normally contain added sugar.

Slack Fill Class Action Time-Barred and Dismissed for Failure to Plead with Specificity

Kline, et al. v. Iovate Health Sciences, U.S.A., Inc., No. 3:15-cv-02387 (S.D. Cal.):  The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative class action alleging Defendant’s supplement products are packaged in “large, opaque containers that contain more than 40% empty space.”  In granting the motion with leave to amend, the Court held that the complaint failed to specify when Plaintiffs purchased Defendant’s products. According to the complaint, Plaintiffs purchased the products within the last four years, but claims under the FAL and CLRA have a three-year statute of limitations. The Court also held that Plaintiffs’ failure to allege which specific products they purchased did not meet the heightened pleading standard required under Rule 9(b).

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