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

  • Zaida Hicks, et al. v. L’Oreal USA, Inc., No. 1:22-cv-03926-JPC (S.D.N.Y. – September 30, 2023): The Southern District of New York dismissed an amended complaint in a putative class action. The amended complaint had alleged defendant misled consumers by representing that the company’s waterproof mascaras “were safe, effective, high quality, and appropriate for use on consumers’ eyelashes and around their eyes.” Plaintiffs alleged that this representation was false or misleading because many of these products contained “detectable amounts” of Per- and Polyfluoroalkyl Substances (“PFAS”). The court held that plaintiffs did not allege sufficient facts to allow the inference that the mascaras they individually purchased (i) actually contained PFAS or (ii) were at a material risk of containing PFAS. The court further held that plaintiffs lacked standing as they did not plausibly allege injury. The court noted that the amended complaint did not allege how many products were tested in plaintiffs’ study, whether all those tested products revealed the presence of PFAS, and if not, what percentage of the products had PFAS. Opinion linked here.
  • Lisa Boss, et al. v. The Kraft Heinz Co., et al., No. 1:21-cv-06380 (N.D. Ill. – September 7, 2023): The Northern District of Illinois dismissed a putative class action complaint alleging that the labeling of defendants’ water-flavoring products was false and misleading. Specifically, plaintiffs claimed that the products were represented to contain no artificial flavors, even though those products contain dl-malic acid, an artificial ingredient. The court held that although the products’ front labeling states the products contain “Natural Flavor with Other Natural Flavors,” that statement was not an affirmative representation that the products are free from artificial flavors. Absent an affirmative representation that the products are “all natural” or free from artificial ingredients, the court concluded that the omission of an “artificial flavor” disclosure would not mislead a reasonable consumer into believing that the products are completely natural and free from artificial flavors. Opinion linked here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

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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.

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.