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

  • Sarah Vitort v. Kroger Co., et al., No. 22-35185 (9th Cir. – April 28, 2023): The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a putative class action alleging that the labeling and marketing of a spreadable fruit product were false or misleading when the products were labeled as “Just Fruit” when they also contain other ingredients. The court agreed with the district court’s conclusion that the “Just Fruit” label is not objectively false and is not likely to mislead a reasonable consumer because spreadable fruit products, which do not exist in nature, necessarily contain ingredients other than fruit. The court held that the district court did not err in dismissing the case with prejudice because the plaintiff “has not alleged, and cannot allege, facts to state a plausible claim that the [Just Fruit] label is false, deceptive, or misleading.” Opinion linked here.
  • Maria Mendez Whitaker v. Pharmavite LLC, No. 2:22-cv-04732-DMG-MAR (C.D. Cal. – May 9, 2023): The U.S. District Court for the Central District of California granted in part and denied in part a motion to dismiss a complaint alleging that the defendant’s vitamin C tablets labeled “Extra Strength” are deceptive as they contain the same amount of vitamin C as their “Regular Strength” products. The court found that the plaintiff failed to show adequate remedy at law regarding their claims to restitution under California’s FAL and UCL statutes and dismissed those claims with leave to amend their complaint. Additionally, the court found the plaintiff had adequately alleged facts showing that a reasonable consumer could be deceived by the “Extra Strength” labeling. 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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