On March 25, 2019, Judge Gary L. Sharpe of the Northern District of New York dismissed a putative class action against CVS and Lang Pharma alleging that the labeling of defendants’ CVS Omega-3 Krill Oil is deceptive and misleading. Plaintiff in the lawsuit, James Gaminde, alleged that CVS Omega-3 Krill Oil contained only sixty percent
Notable Ruling: Glyphosate Verdict—Implications for Food Litigation
As you all know, the Northern District of California jury found earlier this week that Monsanto’s Roundup herbicide product was a “substantial factor” in causing a plaintiff’s non Hodgkin lymphoma. The defendants and industry were all very optimistic that the trial, which focused solely on causation and not knowledge or company conduct, would result in an impartial scientific analysis. Unfortunately, the jury ignored a very substantial body of literature that glyphosate, the active ingredient in Roundup, is safe. It also ignored the conclusions of virtually every regulatory or public health group, including the Environmental Protection Agency (EPA), subcommittees off the World Health Organization (WHO) and the European Food Safety Authority (EFSA). Unfortunately, hundreds of similar cases are pending and a state court jury in Alameda also rendered a verdict against Monsanto.
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Food Litigation Year in Review 2018
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
Notable Ruling: Supply Chain Opinion for Mars
On Monday, June 4, 2018, the Ninth Circuit Court of Appeals issued an important opinion, Hodson v. Mars, Inc., holding that food manufacturers do not have any independent obligation under California consumer protection laws to disclose on their labels the possibility of alleged harmful labor practices occurring in the downstream supply chain of the manufacturer’s products. Affirming the district court’s dismissal of an action against Mars demanding such labeling, the Ninth Circuit confirmed that consumer protection laws do not impose this requirement, as California law limits such affirmative disclosures to circumstances where there is an “unreasonable safety hazard” associated with the product—a condition that was admittedly not present in the Mars case.
Plaintiff had appealed the district court’s dismissal of the action, asking the Ninth Circuit to adopt a more open-ended standard that would require affirmative disclosures concerning issues like supply chain practices, even where no “safety hazard” was present. In a unanimous decision, the Ninth Circuit affirmed, rejecting plaintiffs’ position and holding that California’s consumer protection laws do not require such disclosures. The panel also noted that the relevant information regarding slave and child labor is published on Mars’ website, in compliance with California’s Transparency in Supply Chains Act (CTSCA).
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Industry Insights: The Ongoing Circuit Split Over Ascertainability
Over the past several years, there has been a deepening circuit split over a key issue in class action litigation: whether a class must be “ascertainable” before it can be certified. The principle involved is reasonably straightforward — before a court certifies a class, there should be some method to determine the actual class members.
Industry Insights: GMO Labeling Update
The USDA and the Agricultural Marketing Service (AMS) have set forth the National Bioengineered Food Disclosure Standard (“the Rule”) for labeling food products that have been genetically modified. The Rule requires food companies to disclose information about bioengineered food and food ingredient content by labeling such food as “BE” (bioengineered). According to its summary, the purposes of the Rule are to share information with consumers and to minimize implementation and compliance costs that would otherwise be passed on to consumers.
The USDA is proposing two lists:
- highly adopted bioengineered crops (e.g. canola, field corn, cotton, soybeans and sugar beets); and
- bioengineered crops that are not highly adopted (e.g. non-browning apples, sweet corn, papayas, potatoes and summer squash varieties).
Foods containing highly adopted crops would be required to be labeled as bioengineered. Otherwise, foods containing crops that are not highly adopted would be required to be labeled that they “may be bioengineered” or “may contain bioengineered ingredients.”
Industry Insights: When will the FDA define ‘natural’? Sooner than you might think…
In November 2015, the FDA announced that it was opening regulatory proceedings to define the term “natural” for food and beverage labeling. Ever since then, courts have stayed cases raising “natural” claims under the primary jurisdiction doctrine, appropriately deferring to the FDA’s deliberative process. Recently, however, plaintiffs’ counsel have filed new “natural” suits, or sought
Notable Ruling: A Swift Win for Coca-Cola in Becerra v. Coca-Cola (N.D. Cal.)
In yet another Rule 12 decision tied to the “reasonable consumer” standard, Judge William Alsup of the Northern District of California dismissed a putative class action against Coca-Cola challenging the name “Diet Coke” as misleading. Plaintiff in the lawsuit, Shana Becerra, alleged that the product name “Diet Coke,” which has been in regular use since 1982, might mislead consumers into believing that merely drinking Diet Coke will necessarily lead to weight loss. The complaint cited scientific studies which the plaintiff claimed to show that consuming diet sodas actually leads to weight gain.
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Food Litigation Midyear Review
On August 2, 2017, Perkins Coie will be hosting a 60-minute webcast reviewing the key developments and trends in food litigation. This webcast reflects our active monitoring of food litigation filings in jurisdictions nationwide and will include an analysis of the key legal developments in cases involving claims challenging the labeling, composition, and regulatory compliance
Food Litigation Year in Review
Perkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016. The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing