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

Sean McGinity v. The Procter & Gamble Company, No. 22-15080 (9th Cir. – June 9, 2023): The United States Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of a putative class action alleging the statement “Nature Fusion” on defendant’s packaging of its shampoo mislead consumers into believing that the products are natural, when in fact, they contain non-natural and synthetic ingredients. The court held that plaintiff’s claim failed, reasoning that the statement “Nature Fusion” is not misleading but rather is ambiguous, and that a reasonable consumer would expect that the ingredient list will contain more detailed information about the product that would confirm representations made on the packaging. Plaintiff is represented by Reese LLP. Opinion linked here.

Christine Bischoff v. Albertsons Companies, Inc., et al., No. 7:22-cv-4961 (S.D.N.Y. – June 26, 2023): The Southern District of New York granted dismissal of a putative class action alleging the statement “Rapid Release” on defendant’s packaging of its over-the-counter acetaminophen gelcaps mislead consumers as the product does not work faster than their other lower-cost acetaminophen products. The court found that plaintiff’s claims are preempted by federal law. The court agreed with defendant’s argument that the products satisfy standards for immediate release acetaminophen tablets incorporated in a monograph and dismissed plaintiff’s state law claims for violations of New York’s GBL § 349 and § 350 on the same grounds. 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.

  • Ryan Hardy v. Olé Mexican Foods, Inc., No. 0:22-1805 (2nd Cir. – May 22, 2023): The Second Circuit affirmed the district court’s dismissal of a putative class action alleging defendant’s tortilla products packaging misleads consumers into believing that the products originated from Mexico but were being made in the United States. The court held that plaintiff’s claim failed, reasoning that no reasonable consumer would construe elements on the challenged packaging to be an affirmative representation that the products were manufactured in Mexico. Opinion linked here.
  • Brendan Abbott v. Golden Grain Co.,No. 4:22-cv-01240 (E.D. Mo. – June 13, 2023): The Eastern District of Missouri dismissed a putative class action alleging packaging of defendant’s rice pilaf product contains nonfunctional slack fill. The court held plaintiff’s failed under the reasonable consumer standard because a consumer acting reasonably would review product labels and see the product packaging disclosed its weight and fill line. 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.

  • Abraham Lizama, et al. v. H&M Hennes & Mauritz LP, No. 4:22-cv-01170-RWS (E.D. Mo. – May 12, 2023): The Eastern District of Missouri granted dismissal of a putative class action alleging consumers are misled by the labeling of defendant’s “Conscious” clothing collection. The court dismissed allegations on reasonable consumer grounds, holding that the court would not imply “sustainable” or “environmentally friendly” claims when these representations were not actually made by the company. Specifically, the court reasoned that “H&M states that its conscious choice garments contain ‘more sustainable materials’ and that the line includes ‘its most sustainable products,’” and “[n]o reasonable consumer would understand this representation to mean that the conscious choice clothing line is inherently ‘sustainable’ or that H&M’s clothing is ‘environmentally friendly’ when neither of those representations were ever made.” Opinion linked here.
  • Alexander Hodorovych v. Dollar General Corp., No. 1:22-cv-03415 (N.D. Ill. – May 23, 2023): The Northern District of Illinois dismissed a putative class action alleging Dollar General falsely labeled its lidocaine patch products as “maximum strength” medication that provides “numbing relief” for “up to 12 hours.” The court held that plaintiff’s claims failed, explaining that a reasonable consumer would not be misled by the challenged labeling statements because “up to” statements establish “a ceiling, not a floor.” Additionally, the court reasoned that reasonable consumers understand over-the-counter products are unlikely to be as potent as prescription products and would not interpret the phrase “numbing relief” to mean that the product completely numbs pain receptors, especially in light of the disclaimer that the product is meant to “temporarily relieve[] minor pain.” Opinion linked here.
  • Kristen Lesorgen v. Mondelēz Global, LLC, No. 3:22-cv-50375 (N.D. Ill. – May 19, 2023): The Northern District of Illinois granted dismissal of a putative class action alleging defendants packaging of their mint gum is misleading as the product contains artificial mint flavoring. The court held that plaintiff’s claims failed as it would be “‘unreasonable’ to find that a reasonable consumer would expect there to be mint ingredients as opposed to mint flavor.” 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.

  • Alexis Slaten v. Christian Dior, Inc., No. 23-cv-00409-JSC (N.D. Cal. – May 12, 2023): The Northern District of California granted in part and denied in part a motion to dismiss a complaint alleging the defendant misleadingly advertised the sun protection benefits of several of its cosmetic products, specifically that the potential sun protection would last 24 hours without the need to reapply the product. The court found plaintiff adequately alleged that the defendant’s statements on their products were plausibly misleading to reasonable consumers. The court dismissed the plaintiff’s claims based on the products they didn’t purchase. Opinion linked here.
  • Jeremy Guzman v. Walmart, Inc., No. 22-cv-03465 (N.D. Ill. – May 15, 2023): The U.S. District Court for the Northern District of Illinois granted a motion to dismiss a complaint alleging the statement “Mayo with Olive Oil” on the defendants reduced-fat mayonnaise misleads consumers as to the amount of olive oil contained in the product. The court held that the defendant’s product labeling would not be deceptive to a reasonable consumer as it states it contains olive oil and doesn’t make any claim as to the amount of olive oil the product contains. The court also noted a pattern of similar cases filed by the plaintiff’s counsel regarding consumer labeling that haven’t survived and directed the plaintiff’s counsel to show cause as to awarding attorneys’ fees in this case. 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.

  • Makiko Fukaya v. Daiso California LLC et al., No. 3:23-cv-00099-JSC (N.D. Cal. – May 11, 2023): The Northern District of California trimmed a putative class action challenging the labeling of the defendant’s cookie and snack products. Specifically, the plaintiff alleged that the products were labeled as not containing tree nut ingredients when, in fact, they did. The court held that the plaintiff did not have standing to pursue injunctive relief under the Consumers Legal Remedies Act (CLRA), FAL, and Unfair Competition Law (UCL) and dismissed these claims with leave to amend. The court also granted dismissal of the plaintiff’s express warranty claims as inadequately pleaded. But the court allowed the plaintiff’s request for disgorgement under the FAL and UCL to survive. Opinion linked here.
  • Chris Guerra v. Kind, LLC, No. 3:22-cv-06654-RS (N.D. Cal. – May 11, 2023): The Northern District of California trimmed a putative class action challenging the statements made on the packaging of the defendant’s protein and nut bars, oatmeal, and cereal products regarding the protein content of those products. The court dismissed claims premised on front-label protein claims as being unlawful per se and the omission of a “% Daily Value” for protein in the nutrition facts panel. The court allowed claims to proceed on a misleading-by-omission theory, finding that they “barely” survived preemption. 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.

  • Sarah Vitort v. Kroger Co., et al., No. 22-35185 (9th Cir. – April 28, 2023): The U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a putative class action alleging that the labeling and marketing of a spreadable fruit product were false or misleading when the products were labeled as “Just Fruit” when they also contain other ingredients. The court agreed with the district court’s conclusion that the “Just Fruit” label is not objectively false and is not likely to mislead a reasonable consumer because spreadable fruit products, which do not exist in nature, necessarily contain ingredients other than fruit. The court held that the district court did not err in dismissing the case with prejudice because the plaintiff “has not alleged, and cannot allege, facts to state a plausible claim that the [Just Fruit] label is false, deceptive, or misleading.” Opinion linked here.
  • Maria Mendez Whitaker v. Pharmavite LLC, No. 2:22-cv-04732-DMG-MAR (C.D. Cal. – May 9, 2023): The U.S. District Court for the Central District of California granted in part and denied in part a motion to dismiss a complaint alleging that the defendant’s vitamin C tablets labeled “Extra Strength” are deceptive as they contain the same amount of vitamin C as their “Regular Strength” products. The court found that the plaintiff failed to show adequate remedy at law regarding their claims to restitution under California’s FAL and UCL statutes and dismissed those claims with leave to amend their complaint. Additionally, the court found the plaintiff had adequately alleged facts showing that a reasonable consumer could be deceived by the “Extra Strength” labeling. 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.

  • Kari Warren v. The Coca-Cola Company, No. 7:22-cv-06907-CS (S.D.N.Y. – April 21, 2023): The U.S. District Court for the Southern District of New York granted dismissal of a putative class action challenging the labeling and marketing of the defendant’s hard seltzer beverages. Specifically, the plaintiff claimed that the products were marketed to prompt consumers into believing they contain tequila and sparkling mineral water from Mexico. The court held that the plaintiff’s claim failed, finding that a reasonable consumer would not be misled by the challenged labeling statements since the label does not merely say “margarita” but instead says “margarita hard seltzer.” Thus, the judge ruled that labeling products with the word “hard” was not deceiving, saying the word does not predominantly refer to distilled spirits (such as tequila) but rather denotes that a beverage contains alcohol. Further, any ambiguity could be resolved as a reasonable consumer could refer to the back label to discover the ingredients which make no reference to tequila. Finally, the court rejected the plaintiff’s place-of-origin theory because the labeling made no representations regarding the product containing sparkling mineral water from Mexico but instead represented clearly that the product is produced and bottled in Milwaukee, Wisconsin. Opinion linked here.
  • Antoinette Meza v. Coty, Inc., No. 5:22-cv-05291-NC (S.D.N.Y. – April 24, 2023): The U.S. District Court for the Northern District of California trimmed a putative class action challenging the marketing and labeling of three cosmetic products. Specifically, the plaintiff alleged that the products were labeled as “24 HR” or “25 HR” in terms of sun protection, suggesting that the products would not need to be reapplied over the course of that time when they should actually be applied every two hours. The court granted motion to dismiss on reasonable consumer grounds as to one product because the label, read in context, could suggest that the durational representation could relate to the product’s moisturizing properties, not sun protection. But the court held that reasonable consumers could plausibly be misled by the labeling of the second product because of the close proximity of the sun protection and the “24 HR” representations. The motion to dismiss was also granted as to the third product, as the court found the allegations in the complaint insufficient to determine whether that product was “substantially similar” to the product the plaintiff actually purchased. Leave to amend was granted. 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.

  • Kasama Brand v. KSF Acquisition Corp. dba Slimfast, No. 3:22-cv-00392-LAB-JLB (S.D. Cal. – March 17, 2023): The U.S. District Court for the Southern District of California dismissed a putative class action alleging defendant’s keto snack cup and snack gel shot were labeled with false and misleading claims. Specifically, the plaintiff argued that the claims “Zero Sugar” or “Zero Added Sugar” was false or misleading when the products did not contain a disclaimer regarding whether the products were low- or reduced-calorie foods. The court held that a reasonable consumer would not be misled by the challenged labeling statements because the sugar claims are accurate. The court further held that the plaintiff’s allegations had failed to identify an affirmative misrepresentation that could deceive or mislead a reasonable consumer into believing the products were actually low-calorie foods. Order linked here.
  • Marykae Davis v. The Pur Co. (USA), Inc., No. 6:22-cv-06430-DGL (W.D.N.Y. – April 20, 2023): The U.S. District Court for the Western District of New York dismissed with prejudice a putative class action alleging that defendant’s marketing of peppermint chewing gum misled consumers because it allegedly did not contain “any real peppermint” except at “trace or de minimis levels.” The court held that the plaintiff’s claim failed, reasoning that a reasonable consumer would not be misled by the word “peppermint” appearing on the package because reasonable consumers understand that the word “peppermint” indicates the candy’s flavor, not that peppermint oil or extract provide the only source of that flavor. The court reasoned that any consumer confusion could be cured by reading the ingredient panel on the reverse of the package. Order linked here.

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

  • Felix Bermudez et al. v. Colgate-Palmolive Company, No. 1:21-cv-10988-JLR (S.D.N.Y. – March 31, 2023): The U.S. District Court for the Southern District of New York dismissed allegations that the marketing and labeling of defendant’s charcoal toothpaste were false or misleading. Specifically, plaintiffs challenged representations such as the product was “enamel safe” or promoted “whole mouth health” when the inclusion of charcoal in the products rendered the toothpaste allegedly incapable of providing these advertised benefits. The court held that plaintiffs’ allegations failed under the reasonable consumer test because they did not plausibly allege that the toothpaste contained sufficient charcoal to render the advertising false or misleading. The court determined there were insufficient facts to plausibly infer that the products were actually incapable of providing the promised benefits. The court dismissed plaintiffs’ state law claims for fraud, breach of warranty, and unjust enrichment on similar grounds and denied leave to amend. Order linked here.
  • Heather Rudy v. D.F. Stauffer Biscuit Co., Inc., No. 1:21-cv-03938 (N.D. Ill. – March 30, 2023): The U.S. District Court for the Northern District of Illinois dismissed a putative class action alleging that defendant’s packaging caused consumers to expect “a non-de-minimis amount of lemon ingredients” in its Lemon Snaps cookies. Specifically, the plaintiff alleged that the product’s name and certain representations, such as images of cookies and lemons, would prompt consumers to expect certain amounts of lemons in the products. The court held that a reasonable consumer would not be misled by the challenged labeling statements because nothing on the packaging suggests the amount of lemon ingredients in the cookies. The court noted that a reasonable consumer would buy the cookies expecting a lemon-flavored treat, and that is what the consumer received. Order linked here.
  • Kym Pardini, et al. v. Unilever U.S., Inc., No. 21-16806 (9th Cir. – April 18, 2023): The U.S. Circuit Court for the Ninth Circuit affirmed the district court’s dismissal of a putative class action alleging that labeling on a sprayable butter product inaccurately described the amounts of fat and calories per serving. Specifically, plaintiffs argued that the products’ labeling was misleading because it used the serving size applicable to “spray type fat or oils” rather than serving sizes for “butter, margarine, oil, and shortening” because consumers allegedly use this product like butter. The court held that the plaintiff’s arguments defied common sense, as it requires 40 pumps of the sprayable butter to equal one tablespoon of butter. The court further held that U.S. Food and Drug Administration (FDA) regulations preempted plaintiffs’ claims because the labeling complied with FDA food labeling requirements for “spray type” fats and oils. Order linked here.

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

  • Veronica Eshelby v. L’Oréal USA, Inc., No. 22-cv-01396-AT (S.D.N.Y. – March 27, 2023): The U.S. District Court for the Southern District of New York dismissed with prejudice a putative class action alleging that beauty care products displaying the word “Paris” and French text on their front labels prompted consumers into believing they were made in France. The court held that the plaintiff’s claim failed, reasoning that the mere reference to “Paris” or the use of foreign words is insufficient to deceive a reasonable consumer about where a product was made. Additionally, the court noted that “Paris” is part of the company’s brand name and is the location where the company originated. Order linked here.
  • Jessica Bizco v. Ferrara Candy Company, No. 22-cv-01967 (N.D. Ill. – March 20, 2023): The U.S. District Court for the Northern District of Illinois dismissed a putative class action alleging the defendant falsely labeled its caramel candy products so that consumers would believe the statements such as “Rich and Creamy” or “Made with Real Milk” meant that the products’ fat content came exclusively from milk fats. The court held that the plaintiff’s claim failed, finding that a reasonable consumer would not be misled by the challenged labeling statements because a consumer need only read the ingredients label on the back of the package to see that the fat content in the product was not exclusively from milk ingredients but also from vegetable oils. The court determined that a reasonable consumer would not be misled when the product actually contained milk ingredients. Order linked here.