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

  • Lisa Slawsby v. Champion Petfoods USA, Inc., et al., No. 1:18-cv-10701-GAO (D. Mass. – March 27, 2023): The U.S. District Court of Massachusetts dismissed a putative class action alleging that marketing pet foods as “biologically appropriate” was false or misleading. The plaintiff asserted that the presence of heavy metals and Bisphenol A (BPA) rendered the representation false and that the dog food products were unsafe for consumption. The court held that the plaintiff failed to identify any objective basis for claiming the heavy metals and BPA in the pet food are excessive or unsafe. Further, since the plaintiff fed all of the food to her dog, who suffered no harm and presumably enjoyed the nutrition, the plaintiff “received the benefit of the bargain and [could not] use hindsight to re-bargain the exchange.” Opinion linked here.

  • Eduardo Hernandez, et al. v. Johnson & Johnson Consumer Inc., No 19-cv-15679-ZNQ-TJB (D.N.J. – March 24, 2023): The District Court of New Jersey dismissed with prejudice the plaintiffs’ amended class-action complaint alleging the use of “rapid-release gelcaps” on packaging for acetaminophen products misled consumers into believing they would relieve pain faster than other, less expensive acetaminophen products. The amended complaint sought only injunctive relief. The court dismissed the suit as the plaintiffs failed to allege that they planned to buy the defendant’s rapid-release gelcaps in the future. The court held that the plaintiffs could not show an “injury in fact” to establish Article III standing, because they are aware of the alleged harm caused by the product and would not purchase it again. The plaintiffs are represented by Simmons Hanly Conroy LLC. Opinion linked here.

  • Peter Hoffman v. Kraft Heinz Foods Co., No. 2:22-cv-06060-JLS-JEM (C.D. Cal. – February 7, 2023): The U.S. District Court for the Southern District of New York granted dismissal of a putative class action alleging that the defendant deceptively marketed its flavored drink mix as only containing natural flavors, when it actually contained artificial flavors. The court held that the plaintiff’s claim failed because they could not adequately demonstrate that the DL-malic acid in the flavored drink mix is (1) a flavor or (2) artificial. Additionally, the challenged labeling statements do not say the drink mix has “only” natural flavors. As such, the judge found that a reasonable consumer would not be misled. The court dismissed the plaintiff’s state law claims for fraud and breach of warranty on the same grounds and denied leave to amend. Opinion linked here.
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Photo of David T. Biderman David T. Biderman

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in…

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in state and federal courts in California for 30 years.

On consumer class actions, David represents packaged food companies, coffee companies, dairy companies, footwear companies and others whose nutritional or health claims have been challenged. He also has represented search engines and other online companies. He has a record of favorable results for clients. He successfully tried a major consumer fraud class action on behalf of one of the world’s major search engines in a case involving online gambling advertisements. For that same client, he negotiated a favorable settlement of a class action challenging its online advertising pricing. He represented a major coffee retailer in defeating a class action on standing grounds. He also has litigated pre-emption defenses arising out of food labeling and obtained a dismissal for a client whose nutritional statements were challenged.

For fifteen years, David managed the firm’s full-service product liability team responsible for defending over 1,000 toxic tort cases pending in Los Angeles and Northern California state courts. These cases entailed ongoing trial activity at various levels for several trials set each month. The highly experienced and well-coordinated team has handled thousands of asbestos toxic tort cases for a variety of clients, including FORTUNE 500 companies from such industries as consumer products, aerospace manufacturing, household goods, dry cleaning and industries that generate electromagnetic fields, such as electric utilities and operators of wireless communications systems.

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Photo of Tommy Tobin Tommy Tobin

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false…

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.

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