California’s Attorney General (AG) releases annual summaries of Proposition 65 settlements. This settlement data provides important insight into Proposition 65 litigation trends. Here are some of the most important takeaways from the 2018 data.

First, the average settlement amount was $42,424.52. According to the state AG’s report, there were 829 settlements in calendar year 2018. Many of these settlements also entailed injunctive relief, such as the addition of new labeling or reformulation of the products.
Continue Reading Proposition 65 Settlements: Lessons from 2018 Data

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.
Continue Reading Food Litigation Year in Review 2019

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

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

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.
Continue Reading Rulings, Orders, Settlements – September 18, 2017

Court Denies Motion to Dismiss for Non-Functional Slack-Fill Class Action

White v. Just Born, Inc., No. 2:17-cv-4025 (W.D. Mo.): The Court issued an order denying Defendant’s motion to dismiss this putative non-functional slack-fill class action for violation of Missouri’s Merchandising Practices Act, and raising a claim for unjust enrichment. Plaintiff alleges that Defendant misleads consumers about the amount of Hot Tamales candy and Mike and Ike candy inside their opaque, cardboard packaging. Defendant moved to dismiss arguing that: (1) a reasonable consumer would not be deceived by the packaging; (2) slack-fill is not by itself impermissible under federal or state law, violation of food-labeling regulations does not support a finding of liability under the MMPA, and Plaintiff does not sufficiently allege that the slack-fill is non-functional or deceptive; (3) Plaintiff lacks standing to pursue injunctive relief; and (4) Plaintiff fails to state an ascertainable injury under the MMPA. In denying the motion, the Court held that the question of whether a consumer would determine from the labeling information that the boxes contain excess slack-filled space is a question of fact that Plaintiff had sufficiently plead its claims. It further held that Defendant plead a threat of ongoing or future harm, sufficient to establish standing.
Continue Reading Rulings, Orders, Settlements – August 4, 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

Preliminary Settlement Approved In Misleading Meat Substitute Suit

Birbrower v. Quorn Foods, Inc., No. 2:16-cv-1346 (C.D. Cal.): The Court preliminarily approved a settlement in this putative class action involving allegations that the packaging of Defendant’s meat-substitute products falsely represents that its main ingredient, mycoprotein, is the same or substantially similar to a mushroom, truffle, or morel, when in fact the products are actually made of mold.


Continue Reading Recent Significant Rulings

Guttmann v. Ole Mexican Foods, Inc., No. 3:14-cv-4845 (N.D. Cal.): The Court granted final approval of class settlement in this putative class action alleging a breach of express warranty claim and violations of California’s CLRA, UCL, and FAL, based on Defendant’s failure to disclose that its “Xtreme Wellness” line of tortillas contain partially-hydrogenated oil,

Envtl. Research Ctr., Inc. v. Chosen Foods Inc., et al, No. RG16-798895 (Cal. Sup. Ct. – Alameda Cnty.):  The Court entered the parties’ stipulated consent judgment in this Proposition 65 action alleging the Defendants do not warn that their nutritional health products contain lead.
Continue Reading Court Enters Stipulated Consent Judgment in Proposition 65 Action Over Lead in Dietary Supplements