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
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
Court Grants Defendants’ Motion, Staying Consolidated Action Involving “Healthy and All Natural” Claim on Primary Jurisdiction Grounds
In re Kind LLC “Healthy and All Natural” Litig., No. 1:15-md-02645 (S.D.N.Y.): The Court entered an order granting in part Defendants’ motion to dismiss this consolidated putative class action asserting violations of multiple states’ consumer protection laws and raising claims for breach of express warranty, unjust enrichment, and negligent misrepresentation. Plaintiffs allege Defendants deceptively marketed its snack food products with labels including the words “healthy,” “all natural,” and/or “non GMO.”
Continue Reading Court Grants Defendants’ Motion, Staying Consolidated Action Involving “Healthy and All Natural” Claim on Primary Jurisdiction Grounds
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
Court Denies Motion to Dismiss on Primary Jurisdiction Grounds
Zakaria v. Gerber Products Co., No. 2:15-cv-00200 (C.D. Cal.): The Court denied a motion to dismiss on primary jurisdiction grounds in this putative class action asserting claims under California UCL, FAL, and CLRA. In denying the motion, the Court held that the issue of whether Ddefendant’s product claims were false and misleading was neither
Court Asks the FDA If It Will Provide Guidance on Evaporated Cane Juice
Swearingen v. Healthy Beverage, No. 13-cv-4385 (N.D. Cal.); Swearingen v. Late July Snacks LLC, No.13-cv-04324 (N.D. Cal.): As we previously reported here, several courts in the Northern District of California have invoked the primary jurisdiction doctrine to dismiss or stay evaporated cane juice cases pending FDA action. Recently, the Court requested that
Courts Increasingly Rely on FDA Notice to Stay or Dismiss ECJ Claims
Swearingen v. Amazon Preservation Partners, Inc., No. 13-cv-4402 (N.D. Cal.): In a putative class action alleging claims under California’s UCL and CLRA, and breach of implied warranty, based on the allegedly misleading use of the phrase “organic evaporated cane juice” rather than “sugar” in products’ ingredients lists, the court granted defendants’ motion to stay the ECJ claims and to dismiss the implied warranty claim. First, the court dismissed the breach of implied warranty of merchantability claim without leave to amend, noting that plaintiffs had pleaded only that the goods were misbranded or misrepresented, not that they were unfit for consumption. Second, the court stayed the remaining ECJ claims under the primary jurisdiction doctrine, citing the March 5, 2014 FDA Notice and the numerous recent similar decisions in the Northern District of California. Order.
Continue Reading Courts Increasingly Rely on FDA Notice to Stay or Dismiss ECJ Claims
Court Dismisses for Lack of Standing But Applies Pom Wonderful to Avoid Primary Jurisdiction
Ibarrola v. Kind LLC, No. 3:13-cv-50377 (N.D. Ill.): The court granted defendant’s motion to dismiss in a putative class action alleging claims under the Illinois Consumer Fraud Act, common law fraud, and unjust enrichment, claiming that defendant’s use of evaporated cane juice in its products was misleading and misbranded because plaintiff was not aware that
100% Natural Tea Case Survives Dismissal
Von Slomski v. The Hain Celestial Group, Inc., No. 8:13cv01757 (C.D. Cal.): The court denied defendant’s motion to dismiss a putative class action alleging claims under California’s UCL, FAL, and CLRA, as well as breach of express warranty, based on defendant’s representation that its teas are “100% Natural” when in fact they allegedly contain chemical
Northern District of California Continues Trend of Dismissing or Staying Evaporated Cane Juice Cases on Primary Jurisdiction Grounds
Numerous cases have been filed over the last few years challenging as misleading product labels that list “evaporated cane juice” as an ingredient instead of sugar. On March 5, 2014, the FDA announced that it is actively reviewing its position on use of the phrase “evaporated cane juice.” In light of the FDA’s announcement, several