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.

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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.

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.

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

• Kenneth Telesco v. Starbucks Corp., No. 7:22-cv-02687-NSR (S.D.N.Y. – July 18, 2023): The Southern District of New York granted dismissal of a putative class action alleging defendant misled consumers into believing that a package of its cold brew coffee concentrate yields eight servings when it actually only yields five. The court held that plaintiff’s claim failed because a reasonable consumer would not be misled by the labeling instructions for the product’s preparation and, consequently, the expected yield. The court highlighted that the label clearly states it is a 32-ounce container, which following the 1:1 ratio on the label’s instructions, means that it would produce 64 ounces of coffee. The court added that the reasonable consumer test for false advertising claims “is not based on the ‘least sophisticated consumer’ who is unable to perform simple math.” Opinion linked here.
• Anthony Moreno v. Vi-Jon, LLC, No. 3:20-cv-01446-JM-BGS (S.D. Cal. – July 18, 2023): The Southern District of California granted dismissal of a fourth amended complaint in a putative class action alleging defendant’s hand sanitizers contain labels that misrepresent their ability to kill germs. The court held that plaintiff failed to plausibly allege that a reasonable consumer would be misled by the product’s labeling into thinking that the products kill 99.99% of all germs in existence. Instead, a reasonable consumer would not ignore the labeling’s asterisk leading them to a disclosure on the back panel clarifying that the hand sanitizer is effective at eliminating 99.99% of many common harmful germs. The court denied further leave to amend. Opinion linked here.