Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

Carol Whyble, et al. v. The Nature’s Bounty Co., No. 7:20-cv-03257-NSR (S.D.N.Y.—October 31, 2023): The U.S. District Court for the Southern District of New York dismissed a putative class action challenging the labeling and marketing of the defendant’s joint health dietary supplement products containing glucosamine hydrochloride. Specifically, the plaintiffs challenged the products’ joint health representations, arguing that clinical studies have “found no causal relationship between ingesting glucosamine and joint health.” The court found that the plaintiffs did not plausibly allege the products are “deceptive,” as the scientific studies cited demonstrate the effectiveness of at least one of the products’ ingredients for a few categories of individuals. Therefore, the plaintiffs could not plausibly allege that the claims related to the products’ joint health benefits are false, misleading, or deceptive. Opinion linked here.

Alexis Slaten v. Christian Dior Perfumes, LLC, No. 3:23-cv-00409-JSC (N.D. Cal.—October 19, 2023): The U.S. District Court for the Northern District of California dismissed a putative class action challenging the labeling and marketing of certain cosmetic products. Specifically, the plaintiff alleged that the representation of “24H” applied to the products’ sunscreen benefits. The court held that the plaintiff failed to plausibly plead the labeling was false or misleading to reasonable consumers when reading the product labeling as a whole. Specifically, the court concluded that no reasonable consumer could interpret the front labels’ “24H” representation as applying to the products’ sunscreen benefits because the products’ packaging provided directions to “reapply at least every 2 hours” on the back panel. Opinion linked here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

In November 2023, Senator Deb Fischer (R-NE), a cattle rancher, introduced the Real Marketing Edible Artificials Truthfully Act of 2023, also known as the “Real MEAT Act.” The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions.

According to the bill’s text, the proposal is intended to allow consumers to “make informed decisions in choosing between meat products such as beef and imitation meat products.” Senator Fischer’s proposal would implement enforcement risks for “imitation meat” products. Among other things, the bill would require the word “imitation” be added to the name of imitation meat food products that do not contain meat ingredients “harvested in a traditional matter” (a phrase that is not further defined under the bill).

This is not the first time Senator Fischer has introduced the Real MEAT Act. In 2019, Senator Fischer introduced a largely similar version of the bill, which was cosponsored by Senator Catherine Cortez Masto (D-NV) and former Senators Ben Sasse (R-NE) and James Inhofe (R-OK), but the 2019 bill did not advance past committee.

Perkins Coie’s food regulatory team continues to track legislative developments at the federal and state levels affecting meat products and innovative foods.

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Zaida Hicks, et al. v. L’Oreal USA, Inc., No. 1:22-cv-03926-JPC (S.D.N.Y. – September 30, 2023): The Southern District of New York dismissed an amended complaint in a putative class action. The amended complaint had alleged defendant misled consumers by representing that the company’s waterproof mascaras “were safe, effective, high quality, and appropriate for use on consumers’ eyelashes and around their eyes.” Plaintiffs alleged that this representation was false or misleading because many of these products contained “detectable amounts” of Per- and Polyfluoroalkyl Substances (“PFAS”). The court held that plaintiffs did not allege sufficient facts to allow the inference that the mascaras they individually purchased (i) actually contained PFAS or (ii) were at a material risk of containing PFAS. The court further held that plaintiffs lacked standing as they did not plausibly allege injury. The court noted that the amended complaint did not allege how many products were tested in plaintiffs’ study, whether all those tested products revealed the presence of PFAS, and if not, what percentage of the products had PFAS. Opinion linked here.
  • Lisa Boss, et al. v. The Kraft Heinz Co., et al., No. 1:21-cv-06380 (N.D. Ill. – September 7, 2023): The Northern District of Illinois dismissed a putative class action complaint alleging that the labeling of defendants’ water-flavoring products was false and misleading. Specifically, plaintiffs claimed that the products were represented to contain no artificial flavors, even though those products contain dl-malic acid, an artificial ingredient. The court held that although the products’ front labeling states the products contain “Natural Flavor with Other Natural Flavors,” that statement was not an affirmative representation that the products are free from artificial flavors. Absent an affirmative representation that the products are “all natural” or free from artificial ingredients, the court concluded that the omission of an “artificial flavor” disclosure would not mislead a reasonable consumer into believing that the products are completely natural and free from artificial flavors. Opinion linked here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Kerstine Bryan v. Del Monte Foods, Inc., No. 4:23-cv-00865-MMC (N.D. Cal. – October 19, 2023): The Northern District of California dismissed a putative class action alleging that the labeling of defendant’s Mango Chunks and Peach Chunks fruit cups was false or misleading. Specifically, plaintiff alleged the phrase “fruit naturals” was misleading, as she understood the representation to mean the products contained only natural ingredients, when they actually contained multiple synthetic ingredients. The Court held that plaintiff had not plausibly alleged that the products’ front label, as clarified by the back label, would mislead a reasonable consumer into thinking that the products did not contain synthetic ingredients. The Court found that the front label’s statement, “fruit naturals” did not “make any affirmative promise about what proportion of the ingredients are natural,” and the Court concluded that such ambiguity could be resolved by reference to the back label, which clearly disclosed the inclusion of the alleged synthetic ingredients. Opinion linked here.
  • Mohamad Tlaib v. Chattem, Inc., No. 1:23-cv-00376 (N.D. Ill.– September 8, 2023): The Northern District of Illinois dismissed a complaint that alleged the marketing and labeling of defendant’s dry mouth lozenges were misleading because of the representations that the product would improve oral health by soothing dry mouth, moisturizing mouth tissue, and freshening breath. Plaintiff challenged the representations alleging that laboratory testing shows that the product has a low pH, which can damage tooth enamel and root dentin. The court held that plaintiff did not sufficiently allege that defendant engaged in a deceptive act or practice and did not identify a specific deceptive statement that a significant portion of targeted consumers would find false or misleading. The court held that plaintiff’s interpretation of the product’s label was unreasonable under the circumstances, and the label is not deceptive as a matter of law because plaintiff did not allege that the product did not actually soothe his dry mouth, moisturize his mouth tissue, or freshen his breath. The court additionally held that the product did not expressly represent or imply that it will have a certain pH level or improve general “oral health.” Opinion linked here.

If you are a food or CPG company contact interested in receiving our daily email update on filings and notable rulings, please reach out to Kellie Hale with your request to be added: khale@perkinscoie.com.

The U.S. Courts of Appeal for the Second and Ninth Circuits recently issued rulings reinforcing the reasonable consumer standard. In doing so, these cases refine prior precedent and strengthen a court’s ability to properly dismiss cases over labeling claims where no reasonable consumer could plausibly be misled. As the Ninth Circuit put it, “a reasonable consumer does not check her common sense at the door of the store.”

  • In Moore v. Trader Joe’s Co., the Ninth Circuit emphasized the importance of context in evaluating what a reasonable consumer would understand. 4 F.4th 874 (9th Cir. 2021). The case involved a product labeled as “100% New Zealand Manuka Honey.” The plaintiffs challenged the labeling, alleging that the pollen used to produce the honey did not come entirely from the manuka plant.
  • In McGinity v. The Procter & Gamble Company, 69 F.4th 1093 (9th Cir. 2023), the Ninth Circuit clarified that a reasonable consumer could address ambiguous information on a product’s packaging by looking at other parts of the labeling. McGinity involved a “Nature Fusion” shampoo product. The plaintiff challenged the representation, reading the product’s name as a promise that the shampoo was “natural.” 
  • In Hardy v. Ole Mexican Foods, Inc., No. 22-1805, 2023 WL 3577867 (2d Cir. May 22, 2023), the Second Circuit revisited its prior caselaw. There, the labeling of four tortilla products was challenged when it conveyed, among other things, the phrase “A Taste of Mexico,” graphics similar in appearance to the Mexican flag, and a set of Spanish words. The plaintiff alleged the labeling represented the product as made in Mexico, when it was actually produced in the United States.

Read the full update here: Appellate Courts Issue Reasonable Consumer Defense Wins in Food Litigation Cases | Perkins Coie

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Stephen Dunn, et al. v. Ancient Brands LLC, No. 5:21-cv-00390-LEK-ML (September 15, 2023): The Northern District of New York granted defendant’s motion for judgement on the pleadings of a class action alleging defendant’s bone broth products advertise “20g Protein” on the front label when the main source of protein in the products is collagen—which has a low protein digestibility corrected amino acid score (PDCAAS)—meaning that the protein as measured by PDCAAS is allegedly less than what is represented. While the court found that plaintiffs did have standing, the court held that plaintiffs’ claims based on defendant’s failure to use the PDCAAS for the nutrient content claim on the front label is beyond what is required under federal law and is, therefore, expressly preempted, and any claims based on defendant’s failure to include a “%DV” in the nutritional facts panel are predicated on violations of the federal Food, Drug, and Cosmetic Act (FD&C), which provides no private right of action, and are impliedly preempted. Opinion linked here.
  • Melissa Garza v. Nestle USA Inc. et al., No. 1:22-cv-03098 (September 20, 2023)
    U.S. District Court for the Northern District of Illinois: The Northern District of Illinois granted dismissal of an putative class action alleging the defendant’s milk-based toddler drink powder was falsely advertised as nutritionally appropriate when it contained certain amounts of added sugar. The court held that it lacked proper subject-matter jurisdiction over the case. The plaintiff sought to represent both an Illinois class and a multi-state class, while conceding that the plaintiff was not a member of the multi-state class. The court held that the plaintiff could not represent the multi-state class. In addition, the court found that plaintiff’s alleged damages were less than the required $5 million threshold for Class Action Fairness Act (CAFA) jurisdiction, meaning that jurisdiction on this basis was inappropriate. Opinion linked here.

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Igor Zapadinsky v. Blue Diamond Growers, No. 2:23-cv-00231-JPS (August 7, 2023): The Eastern District of Wisconsin court granted dismissal of a putative class action alleging defendant misled consumers by describing the flavor of its packaged almonds as “smokehouse” when the product used artificial liquid smoke instead of undergoing an actual smoking process in a “smokehouse.” The court held that plaintiff’s claim failed because a reasonable consumer would not be misled by the challenged labeling statements because a reasonable consumer would understand the challenged statement to convey how the product tastes, not describe a production process. Order linked here.
  • Tasheba Barnett, et al. v. The Kroger Co. et al., No. 1:22-cv-00544 (September 11, 2023): The Southern District of Ohio granted dismissal of a putative class action alleging the defendants knowingly sold organic baby teething wafers that contained heavy metals. The court held that plaintiff’s claim failed because they were unable to demonstrate that the defendants knew of any contamination with heavy metals. Further, though plaintiffs cited independent laboratory testing, they failed to produce a report or disclose sufficient details about the purported testing. Opinion linked here.

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Judah Rosenwald, et al. v. Kimberly Clark Corp., No. 3:22-cv-04993-LB (N.D. Cal. – August 14, 2023): The Northern District of California dismissed class action allegations that the defendant’s marketing of its germ removal wet wipes falsely suggests that the product is a germicide. Specifically, plaintiffs challenged representations that the product “wipes away 99% of germs from skin” and has “no harsh chemicals,” when the product’s ingredients do not contain any germicides. The court first dismissed claims brought by consumers outside of California on personal jurisdiction grounds, reasoning that the non-California plaintiffs did not establish general personal jurisdiction over the defendant, a Delaware corporation headquartered in Texas, for their claims related to products that they bought in their states of residence. Next, the court held that the California plaintiffs’ claims did not pass the reasonable consumer test because the challenged representations would not plausibly lead a reasonable consumer to believe the product is actually a “germicide.” Opinion linked here.
  • Gracemarie Venticinque v. Back to Nature Foods Co., LLC, No. 1:22-cv-07497-VEC (S.D.N.Y. – August 8, 2023): The Southern District of New York dismissed a putative class action alleging defendants misleadingly labeled its Stoneground Wheat Crackers in a way that made consumers believe the product was made with “organic whole wheat flour,” when its main source of flour is “organic unbleached enriched wheat flour.” The court held that plaintiff did not alleged facts from which the court could infer that the label in question is materially misleading because any ambiguity could easily be resolved by viewing the ingredient label, so that a reasonable consumer would not have been misled. Plaintiff was denied leave to amend the complaint. Opinion linked here.

We are pleased to publish our first midyear Food and CPG Legal Trends report. This report is a bite-sized version of our annual year in review, providing timely insights on legal trends in the space.

In the first half of 2023, the CPG industry continued to face a meaningful threat of class-action activity, with continued filings against companies in the food, beverage, and personal care space. Recent months have also seen significant regulatory developments relevant to food, beverage, and CPG companies on both a federal and state levels. Read the full report here.

Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Elena Nacarino, et al. v. Kashi Company and Molly Brown, et al. v. Kellogg Company, Nos. 22-15377 and 22-15658 (9th Cir. – August 14, 2023): The Ninth Circuit granted dismissal of two putative class actions alleging defendants misleadingly advertised the protein content contained in its cereal and veggie burger products. The panel held that plaintiffs’ claims failed, reasoning that the protein content claims on the front of the packages complied with federal regulations. The appellate court found that the plaintiff’s state-law claims sought to impose different requirements from those prescribed by federal law, and therefore the state law claims were preempted. The Ninth Circuit wrote: “FDA regulations specifically allow manufacturers to measure protein quantity using the nitrogen method, to display that value in the Nutritional Facts Panel, and to use it to make a quantitative nutrient content claim.”  Opinion linked here.
  • Craig Wiggins v. Unilever U.S. Inc. dba Dove, No. 1:21-cv-01964-PGG (S.D.N.Y. – July 26, 2023): The Southern District of New York court granted dismissal of a putative class action alleging defendant’s cosmetic washes and shampoos are not “hypoallergenic” as claimed on the products’ labels. The court held that plaintiff’s claim failed, because they failed to plausibly allege that the chemicals they cite cause allergic reactions and eye irritation as to render the challenged labels false and misleading. Leave to amend was granted to allow plaintiff to further substantiate the allegations. Opinion linked here.