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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

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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

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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

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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

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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

Quiroz v. The Apple & Eve, LLC, No. 2:18-cv-00401 (E.D.N.Y.): Putative class action alleging violation of New York’s Deceptive and Unfair Trade Practices Act and False Advertising provision of the GBL, as well as California’s CLRA, UCL and FAL, and raising a claim for common law fraud. Plaintiff alleges that Defendant falsely and misleadingly labels its juice products, representing them as having “No Sugar Added” and claiming “[no] preservatives have been added,” leading consumers to believe that “they are receiving a healthier, lower-calorie juice, when they are not.”…
Continue Reading New Filings – January 24, 2018

Kelly v. Cameron’s Coffee and Distribution Company, No. 1816-CV00470 (Mo. Cir. Ct. – Jackson Cnty.): Putative class action asserting violations of the Missouri Merchandising Practices Act. Plaintiff alleges that Defendant sells coffee pods labeled as “100% compostable and environmentally friendly,” when in fact the coffee pods are only compostable in commercial composting facilities that are not generally available in Missouri.
Continue Reading New Filings – January 19, 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…

Miao v. Iovate Health Sciences U.S.A. Inc., No. 1:17-cv-09427 (S.D.N.Y.): Putative slack-fill class action asserting violations of New York’s Deceptive and Unfair Trade Practices Act and False Advertising provisions of the GBL, and raising a claim for common law fraud. Plaintiff alleges that Defendant’s containers of Herbal Zen Nutrition plant-based protein powder are 40% slack-filled.
Continue Reading New Filings – December 15, 2017