Last week, a split-panel of the Tenth Circuit affirmed the district court’s dismissal of a false advertising case in which plaintiffs alleged that “Product of the U.S.A.” labels on various beef products were misleading because the products do not originate from cattle born and raised in the United States. Plaintiffs alleged that defendants imported live
Food & Consumer Packaged Goods Litigation Year in Review 2021
Perkins Coie is pleased to announce the launch of our sixth annual Food Litigation Year in Review. In recognition of the firm’s practice expansion, this year-in-review report has been broadened to the Food & Consumer Packaged Goods Litigation Year in Review 2021. Accompanying the 2021 report are infographics that highlight key litigation outcomes, filing…
ESG Claims Amid Increased Regulatory Scrutiny and Litigation Risks
From investors and shareholders to customers and employees, key stakeholders are increasingly demanding both corporate action and broad-based public disclosure of environmental, social, and governance (ESG) issues. As corporations take action and report on their ESG challenges and achievements, they will be well served to take steps to mitigate the risks of both regulatory enforcement…
PC Food Litigation Index: Q3 2020
Despite the COVID-19 pandemic and limitations on court operations, food litigation filings continue to exceed numbers seen in prior years. As our Food Litigation colleagues wrote in Law360 (sub. req.), food litigation filings are anticipated to surpass 2019’s record numbers by nearly 20%, even though general commercial litigation filings across all industries have decreased significantly.
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PC Food Litigation Index: Q1 2020
With 61 new filings in the first three months of 2020, 2020 is on-track with 2019 to be a big year in food and beverage litigation. About a third of new cases allege defendants misleadingly claim their product contains vanilla, while the remainder of cases are an even mix between cases alleging misleading health misrepresentations, natural claims, false-fact, and Proposition 65.
Vanilla. We wrote about the uptick in “vanilla” cases in our 2019 Food Litigation Year in Review, and the early numbers from 2020 confirm this remains a popular area for plaintiffs. There were 21 new “vanilla” cases filed in 2020 out of 61 total cases. All but one of these cases was filed in New York federal courts by the same group of plaintiffs’ counsel—Sheehan & Associates and Reese LLP. The complaints allege that “vanilla” claims on a wide variety of products (from milk to herbal tea) are false because the products derive their vanilla flavor in part from vanilla flavoring, rather than vanilla beans or vanilla extract. Vanilla flavoring, plaintiffs allege, contains non-vanilla flavors that reasonable consumer do not expect in products labeled vanilla.
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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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Notable Ruling: Reasonable Consumers Not Misled by “Diet” Soft Drinks
The Ninth Circuit delivered a win for food and beverage companies just in time for the new year in a published opinion in Becerra v. Dr Pepper/Seven Up, Inc., — F.3d —, 2019 WL 7287554 (9th Cir. Dec. 30, 2019).
Plaintiff in Becerra alleged that use of the word “diet” to describe Diet Dr Pepper is misleading because it suggests the product will help consumers lose weight. She relied on several scientific studies to allege that aspartame, the artificial sweetener in many diet sodas, “is likely to cause weight gain,” and “poses no benefit for weight loss.” She also relied on the results of a survey that, according to Plaintiff, showed the majority of soft-drink consumers believe “diet” soft drinks will help them lose or maintain their weight. After several rounds of motion to dismiss briefing, the district court dismissed plaintiff’s complaint with prejudice, and plaintiff appealed.…
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PC Food Litigation Index: July 2019
July was a hot month in food litigation. There were twenty-eight new filings, which puts total new food litigation filings at about 100 in 2019. More than half of the new filings were in California state and federal court, with several new filings in D.C. Superior Court and federal court in Illinois and Florida.
Plaintiffs in several new cases allege that defendant’s foods or beverages contain heavy metals, and defendants had a duty to disclose the presence of those metals to consumers. In Labajo v. Welch Foods, Inc., 5:19-cv-01306 (C.D. Cal.), for example, the plaintiff alleges that Welch Foods fails to warn individuals that Welch’s White Grape Juice and Concord Grape Juice products expose consumers to heightened levels of heavy metals. Plaintiffs allege Welch’s has a duty to disclose that the products contain metals independent of any duty imposed by Proposition 65. Likewise, in Arellano v. Mead Johnson Nutrition Co., 2:19-cv-06462 (C.D. Cal.), plaintiff alleges that testing has found Mead Johnson’s Enfamil Premium infant formula contains high levels of the contaminants arsenic, cadmium, lead and mercury, noting that the levels of lead are above the USFDA Provisional Tolerable Intake Level for children six years and under. …
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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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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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