Each month we will be sharing the PC Food Litigation Index, a summary of latest class action filings in the food and beverage industry.  This data is compiled by Perkins Coie based on a review of dockets from courts nationwide.

Consumers continued to challenge the “all natural” labels on products that contain the popular ingredient xanthan gum, used as a stabilizer and emulsifier in thousands of common food products. A level of ambiguity survived the FDA’s aging guidance on natural, which requires that “nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in that food.” Plaintiffs’ lawyers have argued that the fermentation process through which xanthan gum is manufactured is not natural, but synthetic. The ingredient is at the center of an increasing number of “natural” cases. In Grindel v. LarMar Foods, for example, the plaintiff argues that the defendant’s Garlic Expressions brand vinaigrette, which contains xanthan gum, misleads consumers with its “all natural” label. In attacking the salad dressing’s packaging as misleading, the plaintiff pointed not only to the words “all natural,” but “the overall format and appearance of the label.”

Slack-fill cases were also on the rise in June, beating projections with several new complaints targeting alleged underfilling in everything from ice cream “pints” to candy boxes and cake mix and risotto bags. In Kamal v. Eden Creamery, the plaintiff argues that Eden, the maker of the increasingly popular Halo Top brand, “routinely underfills its pint containers,” “short-changing” members of its “cult-like following.”

Several other false fact cases confronted labeling claims suggesting a product contains an ingredient that is absent from the product. One such case took Walmart to task for the label of its Strawberries & Cream Instant Oatmeal, which the plaintiff alleges includes not real strawberries, but rather “cheap pieces of colored apple, literally disguised to look like more expensive strawberries.” In a suit against the makers of Rx Bar, the plaintiff argues that the bars do not actually contain egg whites, as their label states, “because the foaming properties of egg whites would limit the ability to blend it with the other ingredients.” Instead, the product contains egg white protein powder.

Annual Filing Trends

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