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
PC Food Litigation Index: December 2018
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
PC Food Litigation Index: November 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.
November saw a high number of new class action complaints advancing familiar challenges to the “all natural” claims affixed to pasta, ice cream, potato chips and other products. Due to the lack of regulatory guidance around use of the word “natural” on food products, that term continues to be a target for plaintiffs’ suits.
For example, in Rodriguez v. Coolhaus, Inc., the plaintiff claims that several of the defendant’s ice cream products are falsely labeled as “all natural” because they contain allegedly unnatural ingredients like soy lecithin and stabilizers that use dextrose and guar gum.
The popular ingredient malic acid remains at the center of many new “natural” cases. In Lepaine v. UTZ Quality Foods LLC, the plaintiff argues that the defendant’s salt and vinegar potato chips are falsely labeled as flavored only with natural ingredients, because they contain malic acid. Similarly, the plaintiff in Augustine v. Talking Rain takes issue with the “natural” labels on juice products that contain the ingredient. Juice and beverage products are often implicated in these malic acid “natural” suits. Another case filed this month, Anderson v. Outernational Brands Inc., contains substantively similar allegations about a beverage product that is labeled “all natural” and “no artificial color or flavors,” yet contains malic acid.
Plaintiffs are increasingly citing health-related claims on food products as false or misleading, unsupported by scientific evidence. As food manufacturers angle for more health-conscious consumers, their products’ labels are coming under increased scrutiny. For example, coconut oil products have been a frequent target, challenged for labels that describe them as healthy—or at least healthier than other cooking oils such as vegetable oil.
PC Food Litigation Index: October 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.
October 2018 filings continued an upward trend exceeding 2017’s pace. As in the later months of 2017, October 2018 filings focused on false labeling, slack-fill, and all-natural. Both slack-fill claims filed this month pertained to products in opaque bags—Justin’s mini peanut butter cups and Harvest Snap snack products. Natural claims targeted La Croix sparkling water, Hershey fruit-flavored chocolate, and maple syrup.
White chocolate and pasta sauce were popular targets also. Plaintiffs in Ruiz v. Living Intentions LLC and Rafael v. Starbucks Corp. sued in New York over products that allegedly do not contain white chocolate as defined by the FDA. Plaintiffs in Illinois and California, (Kubilius v. Barilla America, Inc. and Flolo v. Cucina & Amore Inc.) sued claiming that that the defendants’ pasta sauces, which are advertised as containing no preservatives, actually contain citric acid—a chemical both plaintiffs allege constitutes a preservative. Mr. C.K. Lee of the Lee Litigation Group represents all four sets of plaintiffs in the white chocolate cases and the pasta sauce cases.
PC Food Litigation Index: September 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.”
Industry Insights: Significant Increase in Prop 65 Actions
On September 18, Patrick Thompson, Steven Hwang and Cassandra Abernathy led a 60 minute webcast to discuss key developments and trends in food litigation. One of the major trends discussed was the significant increase in Prop 65 notices. Food Navigator has created a summary of the webcast here.
Back to School: Food Litigation Trends Webinar
With summer drawing to an end and the kids going back to school, it’s time to check in on the latest food litigation trends. Please join Perkins Coie on Tuesday, September 18 at 1:00 PM ET/12:00 PM CT/10:00 AM PT for a review of the key developments and trends in food litigation. This 60-minute webcast
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.
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.
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.
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
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.
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
