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

test
  • 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.

test
  • 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.

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

  • Zaida Hicks, et al. v. L’Oreal USA, Inc., No. 1:22-cv-03926-JPC (S.D.N.Y. – September 30, 2023): The Southern District of New York dismissed an amended complaint in a putative class action. The amended complaint had alleged defendant misled consumers by representing that the company’s waterproof mascaras “were safe, effective, high quality, and appropriate for use on consumers’ eyelashes and around their eyes.” Plaintiffs alleged that this representation was false or misleading because many of these products contained “detectable amounts” of Per- and Polyfluoroalkyl Substances (“PFAS”). The court held that plaintiffs did not allege sufficient facts to allow the inference that the mascaras they individually purchased (i) actually contained PFAS or (ii) were at a material risk of containing PFAS. The court further held that plaintiffs lacked standing as they did not plausibly allege injury. The court noted that the amended complaint did not allege how many products were tested in plaintiffs’ study, whether all those tested products revealed the presence of PFAS, and if not, what percentage of the products had PFAS. Opinion linked here.
  • Lisa Boss, et al. v. The Kraft Heinz Co., et al., No. 1:21-cv-06380 (N.D. Ill. – September 7, 2023): The Northern District of Illinois dismissed a putative class action complaint alleging that the labeling of defendants’ water-flavoring products was false and misleading. Specifically, plaintiffs claimed that the products were represented to contain no artificial flavors, even though those products contain dl-malic acid, an artificial ingredient. The court held that although the products’ front labeling states the products contain “Natural Flavor with Other Natural Flavors,” that statement was not an affirmative representation that the products are free from artificial flavors. Absent an affirmative representation that the products are “all natural” or free from artificial ingredients, the court concluded that the omission of an “artificial flavor” disclosure would not mislead a reasonable consumer into believing that the products are completely natural and free from artificial flavors. 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.

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

  • Kerstine Bryan v. Del Monte Foods, Inc., No. 4:23-cv-00865-MMC (N.D. Cal. – October 19, 2023): The Northern District of California dismissed a putative class action alleging that the labeling of defendant’s Mango Chunks and Peach Chunks fruit cups was false or misleading. Specifically, plaintiff alleged the phrase “fruit naturals” was misleading, as she understood the representation to mean the products contained only natural ingredients, when they actually contained multiple synthetic ingredients. The Court held that plaintiff had not plausibly alleged that the products’ front label, as clarified by the back label, would mislead a reasonable consumer into thinking that the products did not contain synthetic ingredients. The Court found that the front label’s statement, “fruit naturals” did not “make any affirmative promise about what proportion of the ingredients are natural,” and the Court concluded that such ambiguity could be resolved by reference to the back label, which clearly disclosed the inclusion of the alleged synthetic ingredients. Opinion linked here.
  • Mohamad Tlaib v. Chattem, Inc., No. 1:23-cv-00376 (N.D. Ill.– September 8, 2023): The Northern District of Illinois dismissed a complaint that alleged the marketing and labeling of defendant’s dry mouth lozenges were misleading because of the representations that the product would improve oral health by soothing dry mouth, moisturizing mouth tissue, and freshening breath. Plaintiff challenged the representations alleging that laboratory testing shows that the product has a low pH, which can damage tooth enamel and root dentin. The court held that plaintiff did not sufficiently allege that defendant engaged in a deceptive act or practice and did not identify a specific deceptive statement that a significant portion of targeted consumers would find false or misleading. The court held that plaintiff’s interpretation of the product’s label was unreasonable under the circumstances, and the label is not deceptive as a matter of law because plaintiff did not allege that the product did not actually soothe his dry mouth, moisturize his mouth tissue, or freshen his breath. The court additionally held that the product did not expressly represent or imply that it will have a certain pH level or improve general “oral health.” 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.

The U.S. Courts of Appeal for the Second and Ninth Circuits recently issued rulings reinforcing the reasonable consumer standard. In doing so, these cases refine prior precedent and strengthen a court’s ability to properly dismiss cases over labeling claims where no reasonable consumer could plausibly be misled. As the Ninth Circuit put it, “a reasonable consumer does not check her common sense at the door of the store.”

  • In Moore v. Trader Joe’s Co., the Ninth Circuit emphasized the importance of context in evaluating what a reasonable consumer would understand. 4 F.4th 874 (9th Cir. 2021). The case involved a product labeled as “100% New Zealand Manuka Honey.” The plaintiffs challenged the labeling, alleging that the pollen used to produce the honey did not come entirely from the manuka plant.
  • In McGinity v. The Procter & Gamble Company, 69 F.4th 1093 (9th Cir. 2023), the Ninth Circuit clarified that a reasonable consumer could address ambiguous information on a product’s packaging by looking at other parts of the labeling. McGinity involved a “Nature Fusion” shampoo product. The plaintiff challenged the representation, reading the product’s name as a promise that the shampoo was “natural.” 
  • In Hardy v. Ole Mexican Foods, Inc., No. 22-1805, 2023 WL 3577867 (2d Cir. May 22, 2023), the Second Circuit revisited its prior caselaw. There, the labeling of four tortilla products was challenged when it conveyed, among other things, the phrase “A Taste of Mexico,” graphics similar in appearance to the Mexican flag, and a set of Spanish words. The plaintiff alleged the labeling represented the product as made in Mexico, when it was actually produced in the United States.

Read the full update here: Appellate Courts Issue Reasonable Consumer Defense Wins in Food Litigation Cases | Perkins Coie