Category: Primary Jurisdiction

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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

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

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 … 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

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 an … Continue Reading

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 the Commissioner of … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

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 … Continue Reading

Court Dismisses Evaporated Cane Juice Claims Where Labels Disclosed Sugar Content

Thomas v. Costco Wholesale Corp., No. 5:12cv2908 (N.D. Cal.):  The court granted in part and denied in part defendant’s motion to dismiss in a putative class action alleging claims under California’s UCL, FAL, and CLRA claiming that several of defendant’s products were misbranded and/or misleading with respect to a) nutrient content, b) antioxidant claims, c) … 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

Court Stays Evaporated Cane Juice Case on Primary Jurisdiction Grounds

Swearingen v. Santa Cruz Natural, Inc., 3:13cv04291 (N.D. Cal.): The court dismissed the complaint without prejudice in a putative class action alleging claims under California’s UCL, FAL, CLRA, and a number of common law tort claims, alleging that defendant’s use of the term “organic evaporated cane juice” on its labels violates the FDCA.  The court … Continue Reading

Bumble Bee Foods Wins Partial Summary Judgment in Omega-3 False Ad Class Action

In Ogden v. Bumble Bee Foods, LLC, No. 12cv1828 (N.D. Cal.), the court heard a putative class action in which plaintiff alleged that a variety of Bumble Bee products contain false or misleading label statements, including that its products are a “good source” or “excellent source” of Omega-3 fatty acids and “rich in” Vitamin A … Continue Reading

Evaporated Cane Juice Complaint Dismissed in Part

In Reilly v. Amy’s Kitchen, No. 13cv21525 (S.D. Fla.), plaintiff alleged a wide variety of defendant’s packaged food products violate Florida consumer protection laws because their labels disclose “evaporated cane juice even though ECJ is actually sugar, not juice.” The court ruled that plaintiff lacked standing to allege statutory violations based on products she did … Continue Reading

Court Finds “Zero Impact” a Question for FDA

Watkins v. Vital Pharmaceuticals, Inc., No. 12cv9374 (C.D. Cal.): The court granted a motion to dismiss where plaintiffs allege that protein meal replacement bars sold under the “Zero Impact” label falsely suggest that the “zero” implies the products will have no impact, when in fact they “certainly have an impact on consumers’ carbohydrate, sugar and … Continue Reading