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

  • Felix Bermudez et al. v. Colgate-Palmolive Company, No. 1:21-cv-10988-JLR (S.D.N.Y. – March 31, 2023): The U.S. District Court for the Southern District of New York dismissed allegations that the marketing and labeling of defendant’s charcoal toothpaste were false or misleading. Specifically, plaintiffs challenged representations such as the product was “enamel safe” or promoted “whole mouth health” when the inclusion of charcoal in the products rendered the toothpaste allegedly incapable of providing these advertised benefits. The court held that plaintiffs’ allegations failed under the reasonable consumer test because they did not plausibly allege that the toothpaste contained sufficient charcoal to render the advertising false or misleading. The court determined there were insufficient facts to plausibly infer that the products were actually incapable of providing the promised benefits. The court dismissed plaintiffs’ state law claims for fraud, breach of warranty, and unjust enrichment on similar grounds and denied leave to amend. Order linked here.
  • Heather Rudy v. D.F. Stauffer Biscuit Co., Inc., No. 1:21-cv-03938 (N.D. Ill. – March 30, 2023): The U.S. District Court for the Northern District of Illinois dismissed a putative class action alleging that defendant’s packaging caused consumers to expect “a non-de-minimis amount of lemon ingredients” in its Lemon Snaps cookies. Specifically, the plaintiff alleged that the product’s name and certain representations, such as images of cookies and lemons, would prompt consumers to expect certain amounts of lemons in the products. The court held that a reasonable consumer would not be misled by the challenged labeling statements because nothing on the packaging suggests the amount of lemon ingredients in the cookies. The court noted that a reasonable consumer would buy the cookies expecting a lemon-flavored treat, and that is what the consumer received. Order linked here.
  • Kym Pardini, et al. v. Unilever U.S., Inc., No. 21-16806 (9th Cir. – April 18, 2023): The U.S. Circuit Court for the Ninth Circuit affirmed the district court’s dismissal of a putative class action alleging that labeling on a sprayable butter product inaccurately described the amounts of fat and calories per serving. Specifically, plaintiffs argued that the products’ labeling was misleading because it used the serving size applicable to “spray type fat or oils” rather than serving sizes for “butter, margarine, oil, and shortening” because consumers allegedly use this product like butter. The court held that the plaintiff’s arguments defied common sense, as it requires 40 pumps of the sprayable butter to equal one tablespoon of butter. The court further held that U.S. Food and Drug Administration (FDA) regulations preempted plaintiffs’ claims because the labeling complied with FDA food labeling requirements for “spray type” fats and oils. Order 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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