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

Sean McGinity v. The Procter & Gamble Company, No. 22-15080 (9th Cir. – June 9, 2023): The United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a putative class action alleging the statement “Nature Fusion” on defendant’s packaging of its shampoo mislead consumers into believing that the products are natural, when in fact, they contain non-natural and synthetic ingredients. The court held that plaintiff’s claim failed, reasoning that the statement “Nature Fusion” is not misleading but rather is ambiguous, and that a reasonable consumer would expect that the ingredient list will contain more detailed information about the product that would confirm representations made on the packaging. Plaintiff is represented by Reese LLP. Opinion linked here.

Christine Bischoff v. Albertsons Companies, Inc., et al., No. 7:22-cv-4961 (S.D.N.Y. – June 26, 2023): The Southern District of New York granted dismissal of a putative class action alleging the statement “Rapid Release” on defendant’s packaging of its over-the-counter acetaminophen gelcaps mislead consumers as the product does not work faster than their other lower-cost acetaminophen products. The court found that plaintiff’s claims are preempted by federal law. The court agreed with defendant’s argument that the products satisfy standards for immediate release acetaminophen tablets incorporated in a monograph and dismissed plaintiff’s state law claims for violations of New York’s GBL § 349 and § 350 on the same grounds. 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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