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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The Ninth Circuit delivered a win for food and beverage companies just in time for the new year in a published opinion in Becerra v. Dr Pepper/Seven Up, Inc., — F.3d —, 2019 WL 7287554 (9th Cir. Dec. 30, 2019).

Plaintiff in Becerra alleged that use of the word “diet” to describe Diet Dr Pepper is misleading because it suggests the product will help consumers lose weight. She relied on several scientific studies to allege that aspartame, the artificial sweetener in many diet sodas, “is likely to cause weight gain,” and “poses no benefit for weight loss.” She also relied on the results of a survey that, according to Plaintiff, showed the majority of soft-drink consumers believe “diet” soft drinks will help them lose or maintain their weight. After several rounds of motion to dismiss briefing, the district court dismissed plaintiff’s complaint with prejudice, and plaintiff appealed.


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As you all know, the Northern District of California jury found earlier this week that Monsanto’s Roundup herbicide product was a “substantial factor” in causing a plaintiff’s non Hodgkin lymphoma. The defendants and industry were all very optimistic that the trial, which focused solely on causation and not knowledge or company conduct, would result in an impartial scientific analysis. Unfortunately, the jury ignored a very substantial body of literature that glyphosate, the active ingredient in Roundup, is safe. It also ignored the conclusions of virtually every regulatory or public health group, including the Environmental Protection Agency (EPA), subcommittees off the World Health Organization (WHO) and the European Food Safety Authority (EFSA). Unfortunately, hundreds of similar cases are pending and a state court jury in Alameda also rendered a verdict against Monsanto.

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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

Just two and a half months after the Northern District of California ruled that a reasonable consumer would not be misled to believe “Diet Coke” aids in weight loss, a similar suit against Pepsi-Cola for its Diet Pepsi product has been dismissed (Manuel v. Pepsi-Cola Company). This is the fourth ruling in the past three months dismissing similar claims.

On Thursday, May 17, the Southern District of New York’s Judge Paul A. Engelmayer entered an order granting Pepsi’s motion to dismiss. The class alleged that Pepsi misrepresented its products with the label “diet,” a word that may signify to consumers that the product aids in weight loss. The Court held that nothing in Pepsi’s labeling or advertising claims suggested that the product would assist a consumer in weight loss or weight management. The Court referenced what a reasonable consumer would think – “diet does not stand in isolation,” it said. As such, the Court stated, reasonable consumers would realize that “diet” in the context of a soda means a lower caloric count and that lower caloric count does not mean weight loss.


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Earlier this week, attorneys in the Perkins Coie Food Litigation team joined top in-house counsel, defense attorneys and regulatory experts at the GMA Legal Conference which took place in New Orleans, LA.  The conference covered a wide array of important and timely legal issues, with an emphasis on protecting your brands from litigation risks and

In yet another Rule 12 decision tied to the “reasonable consumer” standard, Judge William Alsup of the Northern District of California dismissed a putative class action against Coca-Cola challenging the name “Diet Coke” as misleading. Plaintiff in the lawsuit, Shana Becerra, alleged that the product name “Diet Coke,” which has been in regular use since 1982, might mislead consumers into believing that merely drinking Diet Coke will necessarily lead to weight loss. The complaint cited scientific studies which the plaintiff claimed to show that consuming diet sodas actually leads to weight gain.

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Parties Settle Kombucha False Advertising Action

Retta, et al. v. Millennium Products, Inc., No. 2:15-cv-01801 (C.D. Cal.): The Ninth Circuit entered an order granting Objector-Appellant’s motion for voluntary dismissal of this putative class action for violations of California’s CLRA, UCL, and FAL, as well as New York’s Deceptive and Unfair Trade Practices Act. Plaintiffs alleged that Defendant’s kombucha beverages are falsely and misleadingly labeled, representing the products as containing antioxidants when in fact the beverages “do not have even a single nutrient that the FDA recognizes and approves of for labeling statements using the term ‘antioxidant.’”
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