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

  • Kari Warren v. The Coca-Cola Company, No. 7:22-cv-06907-CS (S.D.N.Y. – April 21, 2023): The U.S. District Court for the Southern District of New York granted dismissal of a putative class action challenging the labeling and marketing of the defendant’s hard seltzer beverages. Specifically, the plaintiff claimed that the products were marketed to prompt consumers into believing they contain tequila and sparkling mineral water from Mexico. The court held that the plaintiff’s claim failed, finding that a reasonable consumer would not be misled by the challenged labeling statements since the label does not merely say “margarita” but instead says “margarita hard seltzer.” Thus, the judge ruled that labeling products with the word “hard” was not deceiving, saying the word does not predominantly refer to distilled spirits (such as tequila) but rather denotes that a beverage contains alcohol. Further, any ambiguity could be resolved as a reasonable consumer could refer to the back label to discover the ingredients which make no reference to tequila. Finally, the court rejected the plaintiff’s place-of-origin theory because the labeling made no representations regarding the product containing sparkling mineral water from Mexico but instead represented clearly that the product is produced and bottled in Milwaukee, Wisconsin. Opinion linked here.
  • Antoinette Meza v. Coty, Inc., No. 5:22-cv-05291-NC (S.D.N.Y. – April 24, 2023): The U.S. District Court for the Northern District of California trimmed a putative class action challenging the marketing and labeling of three cosmetic products. Specifically, the plaintiff alleged that the products were labeled as “24 HR” or “25 HR” in terms of sun protection, suggesting that the products would not need to be reapplied over the course of that time when they should actually be applied every two hours. The court granted motion to dismiss on reasonable consumer grounds as to one product because the label, read in context, could suggest that the durational representation could relate to the product’s moisturizing properties, not sun protection. But the court held that reasonable consumers could plausibly be misled by the labeling of the second product because of the close proximity of the sun protection and the “24 HR” representations. The motion to dismiss was also granted as to the third product, as the court found the allegations in the complaint insufficient to determine whether that product was “substantially similar” to the product the plaintiff actually purchased. Leave to amend was granted. 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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