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

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  • Terri Little v. Naturestar North America, LLC, et al., No. 1:22-cv-00232-JLT-EPG (E.D. Cal. – November 29, 2023): The U.S. District Court for the Eastern District of California dismissed a putative class action challenging the labeling and marketing of defendants’ single-use tableware and food storage bagsas “compostable.” Specifically, the plaintiff alleged that the products contained significant amounts of perfluoroalkyl and polyfluoroalkyl substances (PFAS), which are not compostable. The court concluded sua sponte that it lacked subject matter jurisdiction because plaintiff failed to adequately allege diversity of citizenship and failed to allege that there is a sufficient amount in controversy for Class Action Fairness Act (CAFA) jurisdiction. The court dismissed the complaint with leave to amend. Opinion linked here.
  • Charlene Vazquez v. Walmart, Inc., No. 1:22-cv-06215-JPO (S.D.N.Y. – November 29, 2023): The U.S. District Court for the Southern District of New York dismissed a putative class action challenging the labeling of defendant’s Oats & Honey Crunchy Granola Bars. Specifically, the plaintiff alleged that the representations on the product’s labeling were misleading because the product contains a de minimis amount of honey. The court found that contrary to the plaintiff’s claim, a reasonable consumer would not expect that the product consists of “only oats and honey or a limited number of ingredients beyond these two,” but instead a reasonable consumer would likely understand the packaging’s reference to “honey” as a reference to the product’s flavor. The court concluded that because the plaintiff’s allegations do not support a claim of material misrepresentation, none of the causes of action survived the motion to dismiss. Opinion linked here.
  • Lynn Zimmerman, et al. v. L’Oreal USA Inc., No. 22-cv-07609-HSG (N.D. Cal. – December 8, 2023): The U.S. District Court for the Northern District of California trimmed a putative class action challenging purported sunscreen benefit representations on some of the defendant’s cosmetic products. Specifically, the plaintiffs alleged that the representations such as “Up to 24HR Breathable Texture,” “Up to 24H Fresh Wear,” and “Sunscreen Broad Spectrum SPF 25” would lead a reasonable consumer to believe that the product provided 24 hours of sunscreen protection when the products’ sun protection factor (SPF) lasts only two hours. The court noted that the back label instructions directed to “reapply at least every 2 hours for sunscreen use,” but the instructions on at least one of the challenged products were printed underneath a peel-back sticker. The court could not conclude as a matter of law that a reasonable consumer would peel back the sticker on the label in the store prior to purchase, and the court allowed the claim to proceed as to those products. By contrast, where the back label instructions to “reapply at least every 2 hours for sunscreen use” were located directly on the back of the product visible to the consumer prior to purchase, the court concluded the challenged representations were not likely to mislead a reasonable consumer. 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.