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

In a speech at the National Food Policy Conference today, FDA Commissioner Scott Gottlieb suggested that long-awaited guidance on the food and beverage industry’s marketing use of the term “natural” may be on the horizon. Gottlieb’s speech noted the more than 7,600 comments that landed at the FDA following its 2015 request for feedback on

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

Earlier this week, attorneys in the Perkins Coie Food Litigation team joined top in-house counsel, defense attorneys and regulatory experts at the GMA Legal Conference which took place in New Orleans, LA.  The conference covered a wide array of important and timely legal issues, with an emphasis on protecting your brands from litigation risks and

Newman v. Dierbergs Markets, Inc., No. 1822-CC00194 (Mo. Cir. Ct. – St. Louis): Putative class action asserting violations of Missouri’s Merchandising Practices Act, and raising a claim for unjust enrichment. Plaintiff alleges that the label on Defendant’s Extra Crunchy “All Natural” Extra Kettle Cooked Potato Chips is false and misleading, representing the chips as “all natural” despite the fact that they contain xanthan gum, a synthetic ingredient.
Continue Reading New Filings – February 7, 2018

Organic Consumers Association v. R.C. Bigelow, Inc., No. 17CA8375 (D.C. Super. Ct.): Plaintiff asserts a cause of action for violation of the District of Columbia Consumer Protection Procedures Act alleging that defendant deceptively labeled, marketed and sold its Bigelow’s Green Tea as “All Natural” and “Natural,” when in fact the product contains the synthetic

Hilel v. Gilda Industries Inc., No. CACE-17-019821 (Fl. Circuit Ct. – Broward Cnty.): Putative class action alleging violation of Florida’s Deceptive and Unfair Trade Practices Act and raising claims for negligent misrepresentation, breach of express warranty, and unjust enrichment. Plaintiff alleges Defendant misrepresented that its cracker products are “all natural,” when the crackers actually contain several artificial, synthetic and/or genetically modified ingredients including bleached wheat, hydrogenated soybean oil and “GMO soy.”
Continue Reading New Filings – November 15, 2017