Food Litigation Year in Review

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 of 140 new class actions and nearly 250 Proposition 65 warning letters aimed at food and beverage companies. This data is broken down by category, reflecting litigation activity covering a wide swath of claims, with persistent filings challenging “natural” claims (including for products containing genetically modified organisms (GMOs)), slack fill, and cases attacking the labeling of foods containing added sugar. The Year in Review also summarizes Proposition 65 regulatory updates and associated litigation risks. Download the Year in Review.

New Filings – April 18, 2017

Shane v. Florida Bottling, Inc., No. 2:17-cv-2197 (C.D. Cal.): Putative class action alleging Defendants misleadingly label and market its juices as “cold pressed” and “fresh pressed” when the juices are actually heat processed (pasteurized).

Painter v. Blue Diamond Growers, No. 2:17-cv-2235 (C.D. Cal.)  Putative class action alleging Defendant falsely markets its almond beverage as being nutritionally equivalent to dairy milk when the beverages allegedly lack many of the essential nutrients and vitamins present in dairy milk.

Casey v. Odwalla, Inc., et al., No. 7:17-cv-2148 (S.D.N.Y.): Copycat putative class action alleging Defendants falsely market and sell their smoothies and protein shakes as containing “No Sugar Added” when similar juice products also do not contain added sugar.

Gomez v. Jelly Belly Candy Company, No. 5:17-cv-0575 (E.D. Cal.)  Putative ECJ class action alleging Defendant falsely markets its “Sport Beans” by failing to list sugar on the product’s ingredient list, while listing evaporated cane juice.

Winn v. Mondelez International, Inc., et al., No. RG17-854671 (Cal. Sup. Ct. – Alameda Cnty.): Putative class action alleging Defendant continued to market and sell its ginger snap cookies, which contain partially hydrogenated oil or trans-fat after the FDA declared trans-fat unsafe for consumers

Dwlatshahi v. McIlenny Company, No. 30-2017-00911222-CU-NP-CXC (Cal. Sup. Ct. – Orange Cnty.): Putative class action for false advertising alleging Defendant deceptively labels its Tabasco brand pepper sauce as being “Made In U.S.A.,” when it contains ingredients made outside the United States.

Perez v. The Kroger Co., No. 2:17-cv-2448 (C.D. Cal.): Copycat putative class action alleging Defendant falsely markets and advertises its apple juice as containing “No Sugar Added” when apple juice allegedly does not normally contain added sugar.

Slack Fill Class Action Time-Barred and Dismissed for Failure to Plead with Specificity

Kline, et al. v. Iovate Health Sciences, U.S.A., Inc., No. 3:15-cv-02387 (S.D. Cal.):  The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative class action alleging Defendant’s supplement products are packaged in “large, opaque containers that contain more than 40% empty space.”  In granting the motion with leave to amend, the Court held that the complaint failed to specify when Plaintiffs purchased Defendant’s products. According to the complaint, Plaintiffs purchased the products within the last four years, but claims under the FAL and CLRA have a three-year statute of limitations. The Court also held that Plaintiffs’ failure to allege which specific products they purchased did not meet the heightened pleading standard required under Rule 9(b).

Dismissal for Failure to Plead Reliance in “Unlawful” UCL Class Action

Swearingen v. Pacific Foods of Oregon, Inc., No. 3:13-cv-04157 (N.D. Cal.): The Court issued an order dismissing this ECJ action, which challenged Defendant’s use of the term “evaporated cane juice” on the ingredient lists for its products. The order dismissed with prejudice Plaintiff’s claims, which failed to plead reliance, and asserted violations of California’s CLRA and UCL in light of the recent decision in Brazil v. Dole Packaged Foods, LLC, 660 Fed. Appx. 531 (9th Cir. 2016), which confirmed that reliance is required for those claims, including under the “unlawful” prong of the UCL.

New Filings – April 3, 2017

Consumer Advocacy Grp., Inc. v. Chulada, Inc., et al., No. BC651577: (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging defendants fail to warn consumers that their ground shrimp contains cadmium and cadmium compounds, and lead and lead compounds.

Envtl. Research Ctr., Inc. v. Blackstone Labs, LLC, No. RG17-850885: (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant fails to warn consumers that its dietary supplements contain lead and cadmium.

Consumer Advocacy Grp., Inc. v. Wal-Mart Stores, Inc., et al., No. BC651902: (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendants fail to warn consumers that their jarred anchovies contain lead. Continue Reading

New Filings – March 31, 2017

Iglesias v. Ferrara Candy Co., et al., No. 3:17-cv-0849 (N.D. Cal.): Putative non-functional slack-fill class action for violation of California’s CLRA, FAL, and UCL. Plaintiff alleges that Defendant misleads consumers about the amount of “Jujyfruits” brand candy inside their opaque, cardboard packaging.

Anestis v. Harvest Beverage Group, LLC, et al., No. 17-52286 (N.Y. Sup. Ct. – Westchester Cnty.): Putative class action for deceptive practices, false advertising, and fraud. Plaintiff alleges that Defendant markets and sells its “Juisi” brand juice products as “raw and cold-pressed,” when the products have been processed and heated through a high-pressure treatment.

Tsuchiyama v. Taste of Nature, Inc., No. BC651252 (Cal. Super. Ct. – Los Angeles Cnty.): Putative non-functional slack-fill class action for violation of California’s CLRA, alleging that Defendant misled consumers about the amount of candy inside its packaging. Continue Reading

New Filings – March 13, 2017

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.

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Recent Significant Rulings

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.

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Food Company Execs Looking to Minimize Criminal Exposure, DOJ Officials Offer Guidance

With the U.S. Department of Justice (DOJ’s) increasing focus on prosecuting “responsible corporate officers” under the criminal misdemeanor provision of the Food, Drug, and Cosmetic Act (FDCA), they have offered some guidance for food companies to demonstrate their commitment to safety compliance. For more information and guidance click here for the full article posted on White Collar Briefly.

Recent Significant Rulings for January 24, 2017

Stay Lifted In Olive Oil False Advertising Suit

Koller v. Med Foods, Inc., No. 3:14-cv-2400 (N.D. Cal.): The Court issued an order lifting the stay of this putative class action asserting violations of California’s CLRA, FAL, UCL, and raising claims for fraud and deceit. Plaintiff claims Defendants misled consumers into paying a premium for their olive oil products by marketing and advertising them as “extra virgin” and imported from Italy, when the olive oil is mixed with refined oil and the bottle is insufficient to protect it from heat and sunlight damage, causing the chemicals to break down and not stay extra virgin. The action was stayed pending decisions from the Ninth Circuit in Jones v. ConAgra Foods, No. 14-16327, Brazil v. Dole Packaged Foods, LLC, No. 14-17480, and Kosta v. Del Monte Foods, No. 15-16974, after the Court found those decisions might affect class certification issues like ascertainability and common proof of damages. On January 3, 2017, the Ninth Circuit issued two separate decisions in Briseno, and on January 19, 2017, the Court lifted the stay and advised the Plaintiff that it may renew his motion for class certification. (Previous Law360 coverage of the action here).