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

  • National Association of Wheat Growers, et al. v. Rob Bonta, No. 20-16758 (9th Cir.—November 7, 2023): The U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in the plaintiffs’ favor. The panel held that California cannot enforce proposed Proposition 65 carcinogen warning labels on products containing glyphosate. The panel’s majority concluded that these warning labels were not purely factual and uncontroversial and were subject to intermediate scrutiny. The majority noted that the warning labels would require the plaintiffs to convey a controversial, fiercely contested message with which they fundamentally disagree. Applying intermediate scrutiny, the panel concluded that the proposed warnings were not narrowly drawn to advance California’s interests, and the state had less burdensome ways to convey the intended message rather than compelling the proposed warning label. Opinion linked here.
  • Tawneya Houser v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, No. 4:21-cv-09390-JST (N.D. Cal.—November 3, 2023): The Northern District of California dismissed a putative class action alleging that the labeling of the defendant’s over-the-counter cold sore treatment was false or misleading because of representations that would lead reasonable consumers to believe that the treatment would typically heal cold sores in 2.5 days. The court concluded that the representation “You Can Get Rid Of Your Cold Sore In 2 ½ Days*” was not likely to mislead a reasonable consumer because (1) the term “can” denotes possibility, not probability, and (2) even if the representation were misleading, a corresponding disclaimer eliminates any doubt as to its meaning. 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.