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

  • Cade Seljak, et al. v. Pervine Foods LLC, No 21-cv-09561-NRB (S.D.N.Y. – March 3, 2023): The Southern District of New York dismissed a putative class action alleging that the labeling of the defendant’s high-protein snack bars is false or misleading. Specifically, plaintiffs allege the use of the word “FIT” prompts consumers into believing the products are “healthy” when the products’ fat content exceeds the permissible level of fat in products labeled as “healthy” under the FDA regulations. The court noted that the term “healthy” did not appear on the product packaging, and the fat content is clearly disclosed on the ingredient panel. Additionally, the court noted that the products’ descriptions are those of desserts, such as milk & cookies, chocolate chip cookie dough, apple pie, and chocolate peanut butter. The court ruled that the defendant’s use of “FIT” does not amount to an implied nutrient content claim under federal law since it does not appear in association with the products’ fat content and therefore does not amount to misbranding. The court also dismissed the plaintiffs’ state statutory claims because they failed to show that a reasonable consumer was likely to be misled into believing the products are healthy when looking at the packaging as a whole, which includes dessert-like descriptions and clear statements of the fat and calorie content. Opinion linked here.
  • Janie Hawkins v. The Coca-Cola Co., No. 21-cv-08788-KMK (S.D.N.Y. – February 7, 2023): The Southern District of New York granted dismissal of a putative class action alleging the defendant’s “100% natural” piña colada-flavored beverage was false and misleading because it contained the artificial ingredient DL-malic acid. The court held that the plaintiff’s claim failed, stating that a reasonable consumer would not be misled by the challenged labeling statements because said consumer could look on the back of the package for clarification as to ingredients and the fruits contained therein. Further, the judge found the plaintiff’s claims of DL-malic acid’s alleged presence in the product were not supported by product testing and therefore were “conclusory statements that the court is not required to accept.” The court dismissed the plaintiff’s state law claims for breach of express warranty and fraud 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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