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.

August 2018 continued this year’s trend of higher monthly filings than in 2017. False advertising, slack-fill and health maintenance claims were filed this month. Some claims were filed in batches. For instance, two class action suits were filed in the Central District of California in two days, Garcia v. Himalayasat-Sustainable Sourcing, LLC, et al. and Garcia v. Frontier Natural Products Coop., et al., alleging that salt is a mineral and not an agricultural product so therefore salt cannot be identified as organic. Thus, Erika Garcia claims, the defendants’ mislabeling falsely and deceptively induced her to purchase the product based on misrepresentations.

In addition, the Center for Food Safety filed a slew of claims in late August against multiple grocery chains claiming the chains sold peanut and almond butter products that contain acrylamide, a substance “known to the state of California to cause cancer,” and despite exposing its customers to the chemical, the chains fail to provide the required Proposition 65 warning.  These filings continued into the month of September.


Continue Reading PC Food Litigation Index: August 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.

Food litigation filings in July were in line with the year’s overall trend, pacing slightly ahead of 2017 numbers. The general false fact category of filings remains the largest, with several new filings in July. In Moore v. Trader Joe’s Company, for example, the plaintiff argues that the defendant’s manuka honey product, sold either as “100% New Zealand Manuka Honey” or “New Zealand Manuka Honey,” is falsely and misleadingly labeled, testing confirming that the product is approximately three-fifths Manuka Honey.

Also in the false fact category this month was a challenge to the marketing and labeling of Ben and Jerry’s ice cream, in particular, claims that it is made from the milk of “happy cows” in “caring dairies.” The plaintiff’s suit contends that the milk actually derives “from cows raised in regular factory-style, mass-production dairy operations.”
Continue Reading PC Food Litigation Index: July 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

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.

California and New York continue to be the preferred jurisdictions for food and beverage class action filings.  The majority of the new filings in February 2018 occurred in those two jurisdictions followed by Missouri and Washington DC.  As for the type of cases filed, the trend continued with suits involving false labeling claims dominating the new filings in February 2018 followed by claims involving slack fill, “all natural” and health maintenance.   The rate of filings ticked down slightly, but the monthly numbers are very variable.

Annual Filing Trends


Continue Reading PC Food Litigation Index: February 2018

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