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

  • Elena Nacarino, et al. v. Kashi Company and Molly Brown, et al. v. Kellogg Company, Nos. 22-15377 and 22-15658 (9th Cir. – August 14, 2023): The Ninth Circuit granted dismissal of two putative class actions alleging defendants misleadingly advertised the protein content contained in its cereal and veggie burger products. The panel held that plaintiffs’ claims failed, reasoning that the protein content claims on the front of the packages complied with federal regulations. The appellate court found that the plaintiff’s state-law claims sought to impose different requirements from those prescribed by federal law, and therefore the state law claims were preempted. The Ninth Circuit wrote: “FDA regulations specifically allow manufacturers to measure protein quantity using the nitrogen method, to display that value in the Nutritional Facts Panel, and to use it to make a quantitative nutrient content claim.”  Opinion linked here.
  • Craig Wiggins v. Unilever U.S. Inc. dba Dove, No. 1:21-cv-01964-PGG (S.D.N.Y. – July 26, 2023): The Southern District of New York court granted dismissal of a putative class action alleging defendant’s cosmetic washes and shampoos are not “hypoallergenic” as claimed on the products’ labels. The court held that plaintiff’s claim failed, because they failed to plausibly allege that the chemicals they cite cause allergic reactions and eye irritation as to render the challenged labels false and misleading. Leave to amend was granted to allow plaintiff to further substantiate the allegations. 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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