Perkins Coie is pleased to present its fourth annual Food Litigation Year in Review 2019, offering a summary of the past year’s key litigation outcomes, regulatory developments, and filing data. Using metrics from our proprietary database, developed by our food litigation team in order to track and understand trends in this area, 2019’s Year in Review again reports an increase in class action litigation, with a record-breaking 173 new lawsuits filed. The upward filing trends in the class action landscape are mirrored in other industries and in the prosecution of related claims: putative class actions against the pet food and dietary supplement industries were on the rise in 2019, as were Proposition 65 warning notices.
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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

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 the risks to humans of acrylamide in food. This conflict pre-emption ruling should help convince courts in other contexts that state warning requirements should defer to more carefully articulated federal policies.

Acrylamide, which forms in many foods during high-temperature cooking (e.g., frying, roasting, baking), has been a Proposition 65 listed substance since 1990, though its presence in food was not discovered until 2002. As the FDA has stated, there is much uncertainty if the levels of acrylamide in food pose any risk to humans.
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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 advertised that its iced tea is labeled as “All Natural,” when in fact, it contains artificial coloring, caramel color.

The Court rejected Defendant’s argument that Plaintiffs’ claims are barred by the doctrines of express preemption, conflict preemption, field preemption, and implied preemption on the grounds that the FDA, vested by Congress with the sole authority to regulate the use, manufacture, and labeling of color additives, has the first and last word on the issue of color additives. Similarly, the Court rejected Defendant’s argument that its compliance with the FDA’s labeling requirements for caramel coloring provides it a safe harbor under California law. The Court also found that Plaintiffs sufficiently alleged a misleading statement. Finally, the Court denied Defendant’s motion to dismiss on the basis that the First Amendment protects its commercial speech.
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food-lit-imagePerkins 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

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

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

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