Perkins Coie is pleased to announce that its fifth annual Food Litigation Year in Review, in coordination with the expansion of the firm’s practice, has been broadened and renamed the Food & Consumer Packaged Goods Litigation Year in Review. In coordination with this rebranding, we have also launched an infographic report that highlights key litigation outcomes, filing data, and industry trends. Despite a tumultuous year, one thing stayed the same: plaintiffs’ class action attorneys continued to file plenty of lawsuits against manufacturers of consumer packaged goods (CPGs).
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Putative CBD Chocolate Class Action Dismissed: Allegations Must Be Plead with Particularity
A recent putative class action regarding edible cannabidiol (CBD) products reminds potential plaintiffs of the importance of pleading with particularity.
On behalf of a putative class of consumers, a purchaser alleged that Bhang Medicinal Chocolates contained a smaller quantity of CBD than the product advertised. Plaintiff asserted that he had independent lab testing to support
Industry Insights: Day Two of the 5th Annual Food Law CLE Conference
On March 3, 2020, CLE International held the second day of Food Law: Navigating the Intersection Between Regulation of Litigation. Now in its fifth year, the conference convenes individuals from the plaintiffs’ bar, academia, industry, and large law firms.
Perkins Coie’s David T. Biderman presented alongside attorneys from the plaintiff and defense bar on the panel “The Reasonable Consumer: An Interactive Debate.” Panelists discussed recent trends in reasonable consumer decisions from the Second and Ninth Circuits and how these developments may affect the reasonable consumer doctrine moving forward.
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Industry Insights: Day One of the 5th Annual Food Law CLE Conference
On March 2, 2020, CLE International held the first day of Food Law: Navigating the Intersection Between Regulation of Litigation. Now in its fifth year, the conference convenes individuals from the plaintiffs’ bar, academia, industry, and large law firms.
Today’s presentations included discussions of litigation case studies and regulatory issues facing food companies in today’s marketplace. For example, in-house counsel detailed their perspectives on the FDA’s standards of identity, the agency’s definition of “healthy,” and other regulatory developments in the context of advances of food and nutritional science. Specifically, general counsel for several food companies discussed issues with compliance with regulations finalized decades ago and ongoing efforts to update regulations using citizen petitions and other means to adapt to changes in food technology. Other panels focused on advocacy strategies of non-governmental organizations through both regulation and litigation. Panelists from the Animal Legal Defense Fund and other public interest organizations discussed allegations of “humane-washing,” and an increase in lawsuits targeting animal welfare claims on consumer packaged goods (CPG) labeling.
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Food Litigation Year in Review 2019
Perkins Coie is pleased to present its fourth annual Food Litigation Year in Review 2019, offering a summary of the past year’s key litigation outcomes, 
regulatory developments, and filing data. Using metrics from our proprietary database, developed by our food litigation team in order to track and understand trends in this area, 2019’s Year in Review again reports an increase in class action litigation, with a record-breaking 173 new lawsuits filed. The upward filing trends in the class action landscape are mirrored in other industries and in the prosecution of related claims: putative class actions against the pet food and dietary supplement industries were on the rise in 2019, as were Proposition 65 warning notices.
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Industry Insights: Multiple CBD Class Actions Filed With More Expected
On the heels of the U.S. Food and Drug Administration’s (FDA) recent declarations regarding the safety of products containing cannabidiol (CBD), several companies have been hit with class action lawsuits alleging that that the company’s CBD-containing products are mislabeled and falsely advertised in violation of state law. Further class action litigation is expected given the
Notable Ruling: D.C. Superior Court Issues Ruling on Standing Under DCCPPA
In an Order issued earlier this week, the D.C. Superior Court entered an important ruling on the District’s Consumer Protection Procedures Act (DCCPPA). While the ruling ultimately found that the plaintiffs in the suit had standing, it substantially trimmed the theories upon which that standing was grounded.
In Praxis Project et al. v. The Coca-Cola Company, two individuals and a non-profit organization lodged suit against the beverage manufacturer alleging that the manufacturer had made false, deceptive, and misleading representations about its sugar-sweetened beverages in violation of the DCCPPA. Among other things, the Plaintiffs alleged they had standing to lodge the suit based on the DCCPPA’s unique standing provisions.
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PC Food Litigation Index: May 2019
There were seventeen new cases filed in May, putting total filings for the year at seventy-two. By this time last year, plaintiffs had filed sixty-nine food and beverage cases. Most of the new filings were in California, with a few in New York and one in Missouri. All seventeen of the new cases were false labeling cases.
In a continued expansion of the “sustainability/human rights” cases, several tuna companies were sued in the Northern District of California for allegedly misleading consumers about whether their tuna is dolphin safe. Plaintiffs allege that the tuna suppliers use fishing tactics that can be harmful to dolphins, rendering their “Dolphin Safe” labels misleading under California law and similar laws from all fifty states. These cases evoke similar human rights supply chain cases pursued, largely without success, in the last few years in the Ninth Circuit including the Chipotle GMO supply chain case, Schneider v. Chipotle Mexica Grill, Inc., and the recent Ninth Circuit omissions case, Hodsdon v. Mars.
Other cases of note include DiGregorio v. Kellogg Sales Company, a Northern District of New York case alleging that Kellogg misleadingly marketed high-sugar cereals as healthy. This case mirrors Hadley v. Kellogg Sales Co., which currently pending in the Northern District of California. Plaintiffs in Hadley and DiGregorio make the same claims and are represented by the same plaintiffs’ counsel.
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Industry Insights: Coffee Products Exempted from Proposition 65
On Monday, June 3rd, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. The rule states that: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.” OEHHA announced the approval of the coffee exemption regulation on Twitter and confirmed that the new rule will take effect on October 1, 2019.
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PC Food Litigation Index: April 2019
With fifteen new cases filed in April, total filings on the year are slightly down from last year—there have been sixty-nine total new filings in 2019 compared with seventy-seven by this time last year. Most new filings were in California. Only one new case was filed in New York, down from six last month.
Most of the new cases were false labeling cases, with only one slack fill and two all-natural cases. Plaintiffs in Shand v. Original New York Seltzer, 19STCV14020 (La. Supp. Ct.), alleged that defendant seltzer beverages are labeled as though they are a product of New York, when the drink is neither bottled in New York nor contains New York water. Shand adds to a recent trend of similar “origin” lawsuits, including several suits last month challenging coffee manufacturers’ characterization of beans as “Kona-style” when they were not grown on the Big Island. Tea beverages were under fire in April. Plaintiffs in several cases alleged that defendants misleadingly labeled their tea products as providing energy from ginseng when the products do not contain detectable amounts of ginseng.
On the natural front, plaintiffs in one case alleged that defendants misleadingly labeled their parmesan cheese product as “all natural” when it contains starch and potassium sorbate. In another, plaintiffs claim defendant misleading labeled its tapenade as “all natural,” even though it contains xanthan gum.
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