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

  • Kasama Brand v. KSF Acquisition Corp. dba Slimfast, No. 3:22-cv-00392-LAB-JLB (S.D. Cal. – March 17, 2023): The U.S. District Court for the Southern District of California dismissed a putative class action alleging defendant’s keto snack cup and snack gel shot were labeled with false and misleading claims. Specifically, the plaintiff argued that the claims “Zero Sugar” or “Zero Added Sugar” was false or misleading when the products did not contain a disclaimer regarding whether the products were low- or reduced-calorie foods. The court held that a reasonable consumer would not be misled by the challenged labeling statements because the sugar claims are accurate. The court further held that the plaintiff’s allegations had failed to identify an affirmative misrepresentation that could deceive or mislead a reasonable consumer into believing the products were actually low-calorie foods. Order linked here.
  • Marykae Davis v. The Pur Co. (USA), Inc., No. 6:22-cv-06430-DGL (W.D.N.Y. – April 20, 2023): The U.S. District Court for the Western District of New York dismissed with prejudice a putative class action alleging that defendant’s marketing of peppermint chewing gum misled consumers because it allegedly did not contain “any real peppermint” except at “trace or de minimis levels.” The court held that the plaintiff’s claim failed, reasoning that a reasonable consumer would not be misled by the word “peppermint” appearing on the package because reasonable consumers understand that the word “peppermint” indicates the candy’s flavor, not that peppermint oil or extract provide the only source of that flavor. The court reasoned that any consumer confusion could be cured by reading the ingredient panel on the reverse of the package. 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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