Category: Preemption

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Food Litigation Year in Review 2018

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 litigation team … Continue Reading

Notable Ruling: Precedent-Setting Proposition 65 Pre-emption Decision Involving Breakfast Cereal

Last week, the California Court of Appeal held that a plaintiff’s suit seeking to require Proposition 65 acrylamide based cancer warnings on 59 popular breakfast cereals was pre-empted by federal nutrition policies aimed at encouraging Americans to consume more whole grains and by FDA letters stating that any warnings should be deferred given the uncertain science on … Continue Reading

Rulings, Orders, Settlements – September 18, 2017

Court Denies Motion to Dismiss in False Advertising Action Involving Iced Tea Martin, et al. v. TradeWinds Beverage Company, No. 2:16-cv-09249 (C.D. Cal.): The Court entered an order denying Defendant’s motion to dismiss this putative class action for violations of California’s CLRA, UCL, FAL, and for breach of express warranty. Plaintiffs alleged that Defendants falsely … Continue Reading

Court Allows Late July Snacks Claims to Proceed

Swearingen v. Late July Snacks, LLC, No. 3:13-cv-04324 (N.D. Cal.): The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative ECJ class action, which alleges violations of California’s CLRA, FAL, and UCL, and a claim for unjust enrichment. Plaintiff alleges that Defendant has misleadingly used the term … Continue Reading

Food Litigation Year in Review

Perkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016.  The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing of … Continue Reading

Courts Lift Stays After FDA Stalls in Giving Guidance on ECJ

Perera v. Pac. Foods of Or., Inc., No. 3:14-cv-2074 (N.D. Cal.): In this putative class action alleging violations of California’s consumer protection statutes claiming that Defendant falsely labels its Hemp Non-Dairy beverage and other products as “all natural” when they contain artificial ingredients and evaporated cane juice (“ECJ”) rather than sugar, the Court issued an … Continue Reading

Partial Dismissal Granted in Trader Joe’s Labeling Row

Gitson v. Trader Joe’s Co., No. 3:13-cv-1333 (N.D. Cal.):  The Court granted in part and denied in part Defendant’s third motion to dismiss this putative class action alleging that various Trader Joe’s products are misleading or misbranded. Defendant’s latest motion sought dismissal of Plaintiff’s claims relating to “soymilk” products. The Court found Plaintiff’s claims were preempted … Continue Reading

High Court Rules Herb Claims Not Preempted

Quesada v. Herb Thyme Farms, Inc., No. S216305 (Cal. Supreme Ct.): The California Supreme Court reversed an Appeals Court’s ruling that Plaintiff’s claims that Defendant’s herbs were misleadingly labeled “organic” were preempted by the Organic Foods Production Act (“OFPA”). The Court reasoned that while organic certification was a fully federally occupied field, state Courts have jurisdiction … Continue Reading

Supreme Court Holds That the FDCA Does Not Preclude Lanham Act Claims Amongst Competitors

The Supreme Court issued its opinion in Pom Wonderful LLC v. Coca-Cola Co. today.  Under the Court’s unanimous ruling, a competitor may bring a claim under the federal Lanham Act, 15 U.S.C. § 1125, against another competitor for false and misleading food labeling, and the FDA’s regulation of food labeling under the FDCA does not … Continue Reading

Court Dismisses In Part for Lack of Injury-In-Fact

Leonhart v. Nature’s Path Foods, No. 5:13cv492 (N.D. Cal.): The court granted defendant’s motion to dismiss with leave to amend in a putative class action alleging claims under California’s UCL, FAL, and CLRA claiming that several of cefendant’s products were misbranded with respect to a) ECJ, b) unapproved health or drug claims, c) “low sodium” … Continue Reading

Supreme Court Likely to Reverse Ninth Circuit in Pom Wonderful v. Coca-Cola

Yesterday the Supreme Court heard oral argument in this case.  The transcript of the argument is available here.  Pom brought this suit against Coca-Cola under the federal Lanham Act, alleging that Coca-Cola’s label (see page 7 of Pom’s petition for certiorari) of its “Pomegranate Blueberry” juice was deceptive and misleading to consumers when the juice in … Continue Reading

Milk and Preservative Labeling Claims Partially Dismissed

Gitson v. Trader Joe’s Co., No. 3:13-cv-01333 (N.D. Cal.): The court granted in part a motion to dismiss putative class action claims that the defendant’s products are misleadingly labeled in that they label some products as containing evaporated cane juice, label non-milk products as “milk,” and contain undisclosed preservatives.  The court reaffirmed its view that … Continue Reading

Ninth Circuit Court of Appeals Reverses Preemption Dismissal

Lilly v. Conagra Foods Inc., No. 12-55921 (9th Cir.): Plaintiff appealed dismissal of her putative class action complaint on federal preemption grounds.  Plaintiff had alleged claims under California’s consumer protection and unfair competition laws, contending that the labeling of defendant’s sunflower seed products misleadingly provided a lower sodium content than the product contained.  The panel … Continue Reading

Smart Balance Milk Labeling Suit Not Preempted

Koenig v. Boulder Brands, Inc., No. 1:13-cv-01186-ER (S.D.N.Y.):  In a putative class action over “fat free” labeling on defendants’ Smart Balance milk products, the court held that nonbinding FDA opinions do not preempt state law claims.  Plaintiffs alleged the “fat free” labeling of Smart Balance milk products infused with a blend of omega-3 fatty acids … Continue Reading

Regulatory Update Regarding Trans Fats

On November 8, 2013, the FDA published a tentative determination that partially hydrogenated oils (PHO), which are the primary dietary source of industrially-produced trans fatty acids, are not generally recognized as safe (GRAS) for any use in food based on current scientific evidence. If this determination is finalized by the FDA, the result would be … Continue Reading