Reasonable Consumer

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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.Continue Reading Notable Ruling: Another Motion to Dismiss for Diet Soda

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.
Continue Reading Notable Ruling: A Swift Win for Coca-Cola in Becerra v. Coca-Cola (N.D. Cal.)

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.’”
Continue Reading Rulings, Orders, Settlements – January 30, 2018

Alonso v. Bauducco Foods Inc., No. 502017ca012068 (Fl. Circuit Ct. – Palm Beach Cnty.): Putative class action for violation of Florida’s Deceptive and Unfair Trade Practices Act, negligent misrepresentation, breach of express warranty and unjust enrichment. Plaintiff alleges Defendant advertised its cracker products as being “all natural” despite the fact that the products contain “artificial, synthetic and/or genetically modified ingredients.”
Continue Reading New Filings – November 15, 2017

Court Denies Motion to Dismiss Class Action Involving Healthfulness of Extra Virgin Coconut Oil

Traction v. Viva Labs, Inc., No. 3:16-cv-02772 (S.D. Cal.): The Court issued an order denying Defendant’s motion to dismiss this putative class action for violation of California’s CLRA, UCL, FAC and breach of express and implied warranties. Plaintiff alleges Defendant misleadingly labels and markets its Organic Extra Virgin Coconut Oil as healthy, and as a healthy alternative to butter and other cooking oils, despite that it is actually inherently unhealthy and a less healthy alternative. The Court denied the motion based on lack of standing and declined to dismiss Plaintiff’s UCL, FAL, and CLRA claims based on the reasonable consumer test.  The Court also denied the motion with respect to Plaintiff’s UCL unlawful claim, and breach of express and implied warranty claims.
Continue Reading Rulings, Orders, Settlements – October 9, 2017

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…

Erika McCartney v. Pacific West Ingredients LLC, et al., No. CGC-17-556912 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging Defendants failed to warn consumers their Organic Merchants Co. brand cacao nibs contain cadmium.

Burton, et al. v. Inventure Foods, Inc., No. 3:17-cv-0134 (S.D. Ill.): Putative class action for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, Missouri Merchandising Practices Act, unjust enrichment, and breach of express warranty. Plaintiff alleges that Defendant misleadingly markets and sells its Boulder Canyon branded snack chips as containing “evaporated cane juice” on their ingredient lists, instead of sugar. Complaint attached.Continue Reading New Filings – March 13, 2017