Imported food contaminants, potential criminal liability for allergen-related deaths, and a growing demand for hemp seed and cannabidiol (CBD) products amidst regulatory uncertainty were all topics of discussion at this year’s American Conference Institute (ACI) Advanced Summit on Food Law Regulation, Compliance, and Litigation, held in Chicago.  Representatives from the country’s largest food manufacturers,

As we end the first quarter of 2019, we are seeing that the pace of class action filings in the food and beverage industry is consistent with the pace we saw in 2018.  California and New York continue to be hotbeds for activity with New York slightly outpacing California.

Most of the filings in the first quarter were related to general false labeling claims. Several separate cases targeted the “Kona” labels on coffee, claiming that the coffee products at issue do not originate from the Kona District of Hawaii’s Big Island. In addition, the labels of coconut-based products continued to come under attack.  The plaintiffs in several separate lawsuits alleged that the defendants’ coconut milk is misleadingly marketed as healthy, claiming that there are harmful cardiovascular effects associated with the consumption of fat from coconuts. Fruit snacks, a frequent target in this area of health-related claims, are also at the center of a new lawsuit. The plaintiff in Jones v. Welch Foods, Inc. contends that the packaging of defendant’s fruit snacks suggest that they are “nutritious, healthy, satiating and composed of non-synthetic ingredients.”

Among the more novel false fact challenges this month was a class action contesting the claims on A2 Milk Company’s milk, which is touted as “Easier on Digestion” and “Naturally Easy to Digest,” nixing the A1 proteins that “can cause you tummy discomfort.” The plaintiff argues that these claims are scientifically unsubstantiated, and that it is lactose—not A1 proteins—that causes digestive difficulties.Continue Reading PC Food Litigation Index: March 2019

Consumer class action suits continue to target food products that plaintiffs allege don’t actually contain the ingredients highlighted in their labels. For example, in one such false fact case last month, the plaintiff argued that the labels for Panera Bread’s blueberry bagels are misleading; allegedly, the bagels do not contain blueberries at all, only pieces of dyed sugar and flour meant to look like blueberries. (Similar past lawsuits have targeted blueberry-labeled products sold at Dunkin Donuts and Krispy Kreme.)

Another similar false fact action, Lima v. Trader Joe’s, alleges that the name of Trader Joe’s Honey Nut O’s cereal conveys the false impression that the product is primarily sweetened by real honey, even though the plaintiff says it is sweetened mostly by sugar. In Morrison v. Nuts ‘N More, the plaintiff argued that the defendant’s White Chocolate Peanut Spread is unfairly and deceptively marketed, leading consumers to believe that it contains real white chocolate, defined as at least 3.5 percent milk fat. The defendant’s product allegedly “uses non-fat dry milk.”
Continue Reading PC Food Litigation Index: December 2018

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.

November saw a high number of new class action complaints advancing familiar challenges to the “all natural” claims affixed to pasta, ice cream, potato chips and other products. Due to the lack of regulatory guidance around use of the word “natural” on food products, that term continues to be a target for plaintiffs’ suits.

For example, in Rodriguez v. Coolhaus, Inc., the plaintiff claims that several of the defendant’s ice cream products are falsely labeled as “all natural” because they contain allegedly unnatural ingredients like soy lecithin and stabilizers that use dextrose and guar gum.

The popular ingredient malic acid remains at the center of many new “natural” cases. In Lepaine v. UTZ Quality Foods LLC, the plaintiff argues that the defendant’s salt and vinegar potato chips are falsely labeled as flavored only with natural ingredients, because they contain malic acid. Similarly, the plaintiff in Augustine v. Talking Rain takes issue with the “natural” labels on juice products that contain the ingredient. Juice and beverage products are often implicated in these malic acid “natural” suits. Another case filed this month, Anderson v. Outernational Brands Inc., contains substantively similar allegations about a beverage product that is labeled “all natural” and “no artificial color or flavors,” yet contains malic acid.

Plaintiffs are increasingly citing health-related claims on food products as false or misleading, unsupported by scientific evidence. As food manufacturers angle for more health-conscious consumers, their products’ labels are coming under increased scrutiny. For example, coconut oil products have been a frequent target, challenged for labels that describe them as healthy—or at least healthier than other cooking oils such as vegetable oil.Continue Reading PC Food Litigation Index: November 2018

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.

October 2018 filings continued an upward trend exceeding 2017’s pace.  As in the later months of 2017, October 2018 filings focused on false labeling, slack-fill, and all-natural. Both slack-fill claims filed this month pertained to products in opaque bags—Justin’s mini peanut butter cups and Harvest Snap snack products. Natural claims targeted La Croix sparkling water, Hershey fruit-flavored chocolate, and maple syrup.

White chocolate and pasta sauce were popular targets also. Plaintiffs in Ruiz v. Living Intentions LLC and Rafael v. Starbucks Corp. sued in New York over products that allegedly do not contain white chocolate as defined by the FDA. Plaintiffs in Illinois and California, (Kubilius v. Barilla America, Inc. and Flolo v. Cucina & Amore Inc.) sued claiming that that the defendants’ pasta sauces, which are advertised as containing no preservatives, actually contain citric acid—a chemical both plaintiffs allege constitutes a preservative. Mr. C.K. Lee of the Lee Litigation Group represents all four sets of plaintiffs in the white chocolate cases and the pasta sauce cases.Continue Reading PC Food Litigation Index: October 2018

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.

September filing activity included several cases challenging the marketing and labeling claims attached to beverage products, with well-known brands like Coca-Cola and Arizona Beverages in plaintiffs lawyers’ sights. Nelson v. Coca-Cola is among the latest in a long string of consumer suits that take issue with “natural” or “all natural” food and beverage labels. The plaintiff in the case contends that a reasonable consumer would take the “natural” label on Hansen’s Natural Sodas to mean that the beverages are “free of any artificial or synthetic ingredients.” She alleges that she would not have purchased the products if she had known that they contain such ingredients. A similar lawsuit, Froio v. Ocean Spray Cranberries, contests the labeling claims on several of the defendant’s juice beverage products, which represent that the products contain no artificial colors or flavors. The plaintiffs alleges that these claims, bolstered by “pictures of water, fields, and fruits pertaining to the specific fruit juice blend in question,” are misleading, because the products do in fact contain artificial ingredients.

Challenges to health-related labeling claims were also particularly high this month, the Neville v. Arizona Beverages case representing this trend. In this case, the plaintiff argues that nutrition facts panel misleads consumers, setting out the sugar and calorie counts for a single serving, even though the standard can actually contains two servings. In another beverage case, Levin v. Stremicks Heritage Foods, the plaintiff argues that while the defendant’s labels “convey to the consumer that these are healthy, natural beverages, brimming with healthful fruit juices,” they are in fact primarily water and high fructose corn syrup. Further, the plaintiff argues that the “excellent source of vitamin C” claim is false, as the “excess sugar” contained in the products “interferes with the body’s metabolism of vitamins.” Continue Reading PC Food Litigation Index: September 2018

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.

Consumers continued to challenge the “all natural” labels on products that contain the popular ingredient xanthan gum, used as a stabilizer and emulsifier in thousands of common food products. A level of ambiguity survived the FDA’s aging guidance on natural, which requires that “nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in that food.” Plaintiffs’ lawyers have argued that the fermentation process through which xanthan gum is manufactured is not natural, but synthetic. The ingredient is at the center of an increasing number of “natural” cases. In Grindel v. LarMar Foods, for example, the plaintiff argues that the defendant’s Garlic Expressions brand vinaigrette, which contains xanthan gum, misleads consumers with its “all natural” label. In attacking the salad dressing’s packaging as misleading, the plaintiff pointed not only to the words “all natural,” but “the overall format and appearance of the label.”

Slack-fill cases were also on the rise in June, beating projections with several new complaints targeting alleged underfilling in everything from ice cream “pints” to candy boxes and cake mix and risotto bags. In Kamal v. Eden Creamery, the plaintiff argues that Eden, the maker of the increasingly popular Halo Top brand, “routinely underfills its pint containers,” “short-changing” members of its “cult-like following.”

Several other false fact cases confronted labeling claims suggesting a product contains an ingredient that is absent from the product. One such case took Walmart to task for the label of its Strawberries & Cream Instant Oatmeal, which the plaintiff alleges includes not real strawberries, but rather “cheap pieces of colored apple, literally disguised to look like more expensive strawberries.” In a suit against the makers of Rx Bar, the plaintiff argues that the bars do not actually contain egg whites, as their label states, “because the foaming properties of egg whites would limit the ability to blend it with the other ingredients.” Instead, the product contains egg white protein powder.

Annual Filing Trends

Continue Reading PC Food Litigation Index: June 2018

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.

Through May the pace of consumer class action filings against food companies continued unabated, tracking last years filing rate leading to nearly 150 new cases annually. The mix of cases continued to duplicate last years, with some notable case filings discussed below.

The plaintiffs’ bar continued to mount challenges to the “all natural” labels on products that contain xanthan gum, the widely-used, FDA-approved binding and thickening agent commonly found in salad dressings, ice creams, and hosts of other popular foods. In Burton v. Cedarlane Natural Foods, the plaintiff alleged that the defendant’s use of the ingredient makes the “All Natural” labels on, for example, its enchiladas and omelets false and deceptive. In another similar xanthan gum action this month, the plaintiff objected to labeling pasta dishes such as stuffed shells and lasagna as “all natural” when they contain the ingredient.

The labeling representations of frozen dessert products were at the center of two cases this month, the first against Eden Creamery’s Halo Top brand, the second against Breyers. The plaintiff in the former argues that Halo Top’s branding evokes the color yellow, which is associated with butter and cream and therefore causes consumers to think of ice cream. Because Halo Top products are actually “light ice cream,” a distinct product category, the plaintiff argues that the labels are misleading. Somewhat similarly, the Breyers plaintiff alleges that the defendant’s Breyers Delights products are misleading labeled as “ice cream,” even though their ingredients are inconsistent with consumers’ expectations for ice cream.

Alleged lack of scientific evidence for certain health-related claims was again at issue in a Central District of California case against Pom Wonderful. The plaintiff argued that the defendant’s pomegranate juice is falsely labeled, giving consumers the impression that the beverage has medically-proven disease treatment benefits that have not been sufficiently demonstrated or scientifically vetted.

Annual Filing Trends

Continue Reading PC Food Litigation Index: May 2018

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.

In April, “natural” and its opposite, “artificial,” continued to be legally-contested territory in the food world. Malic acid has become a frequent target of plaintiffs’ lawyers who argue that because the ingredient can be in some instances deemed a manufactured flavoring agent, food products that contain it cannot fairly be labeled “no artificial flavors” Malic acid occurs naturally in many fruits but also can be manufactured through chemical reactions. Plaintiffs likewise continue to challenge “all natural” and “no artificial ingredients” labels on food products that contain xanthan gum, used in a wide range of foods as a thickening and stabilizing agent. Like malic acid, xanthan gum is an extraordinarily common, FDA-approved ingredient that has been in use for decades.

Despite hints from FDA Commissioner Scott Gottlieb that Agency guidance on the enduring “all natural” question is forthcoming, the Court opted to lift the stay of Tran v. Sioux Honey Association. The Court had previously stayed the action, awaiting “the outcome of FDA’s rule-making process regarding the permissible uses of the term natural in food labeling.” Responding to a direct request from the Court in a letter dated April 9th, the FDA declined to provide a determination as to “whether and in what circumstances honey containing glyphosate may or may not be labeled ‘pure’ or ‘100% Pure.’” The Court responded by lifting the stay, thus allowing the case to proceed.

A pair of similar suits contest the made with real fruit packaging of fruit bars, which the plaintiffs claim misleads consumers because of the process by which real fruit is added to the bars.

Annual Filing Trends

Continue Reading PC Food Litigation Index: April 2018

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.

In March, plaintiffs challenged a variety of food labeling and marketing claims, with most filings falling into the general false fact category. Claims in this category contested the labeling representations on products ranging from eggs and kombucha to quinoa snacks and spring water. As trendy, premium ingredients—like quinoa—make more frequent appearances on product labels, plaintiffs’ counsel are seeking to challenge the quantity of  those ingredients in a given product. Several claims continued the trend of targeting food and beverage labels that state or seem to suggest products or their ingredients are sourced from certain locales. Slack-fill lawsuits made up the second largest category of food litigation filings, where candy packaging remains a frequent target. Filings are down slightly from a year ago, though some jurisdiction such as Illinois have seen increased food litigation activity.

Annual Filing Trends


Continue Reading PC Food Litigation Index: March 2018