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.
Continue Reading PC Food Litigation Index: Q1 2020

As of August 2019, overall food litigation filings are on pace with those of last year. California and New York remain the two most popular jurisdictions for food litigation matters.  While California filings in 2019 are approximately the same as this time last year, we note that about 40% of total California filings occurred between September and December 2018.  So far this year, we have also noticed an uptick in filings in the District of Columbia.  While filings in the District were a small part of the overall total in 2018, food-related filings in this jurisdiction are currently exceeding those of larger jurisdictions, including Florida, Illinois, and Missouri.

Regarding types of matters, false labeling cases have far outstripped those of other categories.  Compared with August 2018, food-related false advertising claims have increased nearly 60%.  Filings for “all natural” and slack-fill claims have fallen compared to August 2018, with fewer than 20 new cases filed in 2019 from both categories combined.  Even so, we are tracking a number of important trends regarding “all natural” claims, including several cases alleging that the presence of malic acid or other materials render product labeling regarding “naturally flavored” false or misleading. 
Continue Reading PC Food Litigation Index: August 2019

In recent years, we have tracked numerous cases that claimed food products marketed as “pure” did not have the marketed levels of purity. From water to cheese to honey products, “pure” claims have led to challenges in federal and state courts around the country.

Many suits alleged that trace amounts of synthetic chemicals or pesticides render products impure or otherwise not 100% “natural.” Recently, a consumers’ association sued a tea manufacturer, alleging that the tea showed trace amounts of synthetic molecules, including glyphosate, even though it was marketed as “100% Natural” and “Pure.” Honey manufacturers have faced several similar suits, which alleged that honey containing trace amounts of pesticides, particularly glyphosate, is not “100% Pure.”
Continue Reading Industry Insights: Putting “Pure” Claims in Context

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.
Continue Reading PC Food Litigation Index: April 2019

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

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.

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

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