Perkins Coie is pleased to present its third annual Food Litigation Year in Review, offering a summary of the year’s key litigation outcomes, regulatory developments, and filing data. Last year, pointing to uncertainty at the appellate level, Perkins Coie predicted continued litigation in 2018. Using metrics from our proprietary database, developed by our food

On August 1, plaintiff and putative class representative Markeith Parks sued celebrity chef Rachael Ray’s dog food brand Nutrish® alleging that the products are falsely labeled and marketed as “natural.” The complaint states that Nutrish® contains the chemical glyphosate, which Parks alleges is “unnatural.”[1]

Given Rachael Ray’s national fame, this case has caught the attention of multiple media outlets and legal powerhouses with experience in similar claims. Perkins Coie’s food litigation team conducted research into the number of “natural” pet food claims filed nationwide since 2013. Results can be found in the bar chart below.

“Natural” Pet Food Claims Filed Since 2013

Continue Reading Industry Insights: The Rise of Natural Pet Food Claims

Each month we will be sharing the PC Food Litigation Index, a summary of latest class action filings in the food and beverage industry. This data is compiled by Perkins Coie based on a review of dockets from courts nationwide.

August 2018 continued this year’s trend of higher monthly filings than in 2017. False advertising, slack-fill and health maintenance claims were filed this month. Some claims were filed in batches. For instance, two class action suits were filed in the Central District of California in two days, Garcia v. Himalayasat-Sustainable Sourcing, LLC, et al. and Garcia v. Frontier Natural Products Coop., et al., alleging that salt is a mineral and not an agricultural product so therefore salt cannot be identified as organic. Thus, Erika Garcia claims, the defendants’ mislabeling falsely and deceptively induced her to purchase the product based on misrepresentations.

In addition, the Center for Food Safety filed a slew of claims in late August against multiple grocery chains claiming the chains sold peanut and almond butter products that contain acrylamide, a substance “known to the state of California to cause cancer,” and despite exposing its customers to the chemical, the chains fail to provide the required Proposition 65 warning.  These filings continued into the month of September.Continue Reading PC Food Litigation Index: August 2018

The U.S. Food & Drug Administration determined in 2015 that Partially Hydrogenated Oils (PHOs) are not “Generally Recognized as Safe,” or GRAS. PHOs are the leading source of trans fats in the human diet.

In the nutrition industry, much is disputed, but the unhealthy nature of trans fats, a form of unsaturated fat, is not. Trans fats are fats that have a unique chemical structure; they contain double bonds on opposite sides, whereas other unsaturated fats have double bonds on the same side, and saturated fats lack any double bonds.

Source: http://chemistrybasics.edublogs.org/2007/02/16/trans-fats/Continue Reading Industry Insights: FDA Extends Deadline for Eliminating PHOs

Just two and a half months after the Northern District of California ruled that a reasonable consumer would not be misled to believe “Diet Coke” aids in weight loss, a similar suit against Pepsi-Cola for its Diet Pepsi product has been dismissed (Manuel v. Pepsi-Cola Company). This is the fourth ruling in the past three months dismissing similar claims.

On Thursday, May 17, the Southern District of New York’s Judge Paul A. Engelmayer entered an order granting Pepsi’s motion to dismiss. The class alleged that Pepsi misrepresented its products with the label “diet,” a word that may signify to consumers that the product aids in weight loss. The Court held that nothing in Pepsi’s labeling or advertising claims suggested that the product would assist a consumer in weight loss or weight management. The Court referenced what a reasonable consumer would think – “diet does not stand in isolation,” it said. As such, the Court stated, reasonable consumers would realize that “diet” in the context of a soda means a lower caloric count and that lower caloric count does not mean weight loss.Continue Reading Notable Ruling: Another Motion to Dismiss for Diet Soda