On Monday, June 3rd, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. The rule states that: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.” OEHHA announced the approval of the coffee exemption regulation on Twitter and confirmed that the new rule will take effect on October 1, 2019.
The CBD industry is widespread and very lucrative, but the FDA has sent mixed messages regarding CBD use. On the one hand, the FDA has stated that CBD is “unsafe” and not an approved additive to food, beverages and supplements; on the other hand, the FDA has not taken a single enforcement action against a company for marketing CBD-related products.
In a public hearing on May 31, 2019, the FDA gathered information in order to help develop a pathway forward to a coherent policy regarding CBDs.
In this update, we outline the takeaways from the public hearing and how clear regulatory guidelines regarding CBD products will help encourage additional investment and growth in the CBD market. Read More.
With fifteen new cases filed in April, total filings on the year are slightly down from last year—there have been sixty-nine total new filings in 2019 compared with seventy-seven by this time last year. Most new filings were in California. Only one new case was filed in New York, down from six last month.
Most of the new cases were false labeling cases, with only one slack fill and two all-natural cases. Plaintiffs in Shand v. Original New York Seltzer, 19STCV14020 (La. Supp. Ct.), alleged that defendant seltzer beverages are labeled as though they are a product of New York, when the drink is neither bottled in New York nor contains New York water. Shand adds to a recent trend of similar “origin” lawsuits, including several suits last month challenging coffee manufacturers’ characterization of beans as “Kona-style” when they were not grown on the Big Island. Tea beverages were under fire in April. Plaintiffs in several cases alleged that defendants misleadingly labeled their tea products as providing energy from ginseng when the products do not contain detectable amounts of ginseng.
On the natural front, plaintiffs in one case alleged that defendants misleadingly labeled their parmesan cheese product as “all natural” when it contains starch and potassium sorbate. In another, plaintiffs claim defendant misleading labeled its tapenade as “all natural,” even though it contains xanthan gum. Continue Reading PC Food Litigation Index: April 2019
Imported food contaminants, potential criminal liability for allergen-related deaths, and a growing demand for hemp seed and cannabidiol (CBD) products amidst regulatory uncertainty were all topics of discussion at this year’s American Conference Institute (ACI) Advanced Summit on Food Law Regulation, Compliance, and Litigation, held in Chicago. Representatives from the country’s largest food manufacturers, food and beverage agency regulators, and food litigation experts gathered in April to discuss recent product trends and regulatory developments in the food and beverage space. To read about the highlights from the conference, please click here.
As we end the first quarter of 2019, we are seeing that the pace of class action filings in the food and beverage industry is consistent with the pace we saw in 2018. California and New York continue to be hotbeds for activity with New York slightly outpacing California.
Most of the filings in the first quarter were related to general false labeling claims. Several separate cases targeted the “Kona” labels on coffee, claiming that the coffee products at issue do not originate from the Kona District of Hawaii’s Big Island. In addition, the labels of coconut-based products continued to come under attack. The plaintiffs in several separate lawsuits alleged that the defendants’ coconut milk is misleadingly marketed as healthy, claiming that there are harmful cardiovascular effects associated with the consumption of fat from coconuts. Fruit snacks, a frequent target in this area of health-related claims, are also at the center of a new lawsuit. The plaintiff in Jones v. Welch Foods, Inc. contends that the packaging of defendant’s fruit snacks suggest that they are “nutritious, healthy, satiating and composed of non-synthetic ingredients.”
Among the more novel false fact challenges this month was a class action contesting the claims on A2 Milk Company’s milk, which is touted as “Easier on Digestion” and “Naturally Easy to Digest,” nixing the A1 proteins that “can cause you tummy discomfort.” The plaintiff argues that these claims are scientifically unsubstantiated, and that it is lactose—not A1 proteins—that causes digestive difficulties.
On March 25, 2019, Judge Gary L. Sharpe of the Northern District of New York dismissed a putative class action against CVS and Lang Pharma alleging that the labeling of defendants’ CVS Omega-3 Krill Oil is deceptive and misleading. Plaintiff in the lawsuit, James Gaminde, alleged that CVS Omega-3 Krill Oil contained only sixty percent of the 300mg of Omega-3 Krill Oil represented by the label, and therefore violated New York’s General Business Law sections 349 and 350, as well as claims for breach of express warranty, implied warranty, unjust enrichment and fraud. The court ruled that plaintiff lacked Article III standing stating that plaintiff’s “failure to allege that he tested his bottle of CVS Krill Oil—indeed, his failure to make any allegation regarding how he knows that it was mislabeled—is fatal.” The court held that plaintiff’s conclusory and unsubstantiated allegations failed to demonstrate that he suffered an ‘injury in fact’ which is concrete and particularized, a requisite to establish Article III standing. Noting that any amendment would be futile, the court granted defendants’ motion to dismiss with prejudice and entered judgment for defendants. Defendants were represented by the Perkins Coie food litigation team.
James Gaminde v. Lang Pharma Nutrition, et al – Case No. 18-cv-00300-GLS (N.D.N.Y)
As you all know, the Northern District of California jury found earlier this week that Monsanto’s Roundup herbicide product was a “substantial factor” in causing a plaintiff’s non Hodgkin lymphoma. The defendants and industry were all very optimistic that the trial, which focused solely on causation and not knowledge or company conduct, would result in an impartial scientific analysis. Unfortunately, the jury ignored a very substantial body of literature that glyphosate, the active ingredient in Roundup, is safe. It also ignored the conclusions of virtually every regulatory or public health group, including the Environmental Protection Agency (EPA), subcommittees off the World Health Organization (WHO) and the European Food Safety Authority (EFSA). Unfortunately, hundreds of similar cases are pending and a state court jury in Alameda also rendered a verdict against Monsanto.
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 litigation team in order to track and understand trends in this area, 2018’s Year in Reviewagain reports an increase in class action litigation—indeed, one of the most active years on record, with 158 new lawsuits.
Lawsuits continued to challenge the use of the term “natural” (yet undefined by the FDA) on food and beverage product labels. In particular, these claims continued to apply the theory that foods containing trace amounts of pesticides should not be labeled “natural,” notwithstanding the general skepticism of the courts toward such arguments. Lawsuits alleging slack fill in the packaging of candies, bake mixes, and other foods also continued unabated, despite notable early victories in several such cases. While the courts have seemed increasingly unwilling to adopt plaintiffs’ theories, class action litigation persisted and grew.
For several years, Perkins Coie has been a leader in defending food litigation cases, securing favorable, precedent-setting results for its clients. 2018 was no different, with several important victories, including a pathbreaking decision in the Proposition 65 case Post, et al. v. Superior Court. The California Court of Appeals held that Proposition 65 warnings for cereal based on the presence of acrylamide in those foods would conflict with the FDA’s longstanding policies encouraging the consumption of whole grain cereals. The court granted summary judgment to the food industry’s leading cereal manufacturers, a decision that withstood attempted appeal to the state’s highest court. Consistent with the trend of the past several years, the number of Proposition 65 pre-suit notice letters continues to increase, 2018 seeing more than 530 such notices. Given the proliferation of pre-suit notices, litigation in this area is bound to increase.
Consumer class action suits continue to target food products that plaintiffs allege don’t actually contain the ingredients highlighted in their labels. For example, in one such false fact case last month, the plaintiff argued that the labels for Panera Bread’s blueberry bagels are misleading; allegedly, the bagels do not contain blueberries at all, only pieces of dyed sugar and flour meant to look like blueberries. (Similar past lawsuits have targeted blueberry-labeled products sold at Dunkin Donuts and Krispy Kreme.)
Another similar false fact action, Lima v. Trader Joe’s, alleges that the name of Trader Joe’s Honey Nut O’s cereal conveys the false impression that the product is primarily sweetened by real honey, even though the plaintiff says it is sweetened mostly by sugar. In Morrison v. Nuts ‘N More, the plaintiff argued that the defendant’s White Chocolate Peanut Spread is unfairly and deceptively marketed, leading consumers to believe that it contains real white chocolate, defined as at least 3.5 percent milk fat. The defendant’s product allegedly “uses non-fat dry milk.” Continue Reading PC Food Litigation Index: December 2018
On December 20, 2018, President Trump signed the Agriculture Improvement Act of 2018 (popularly known as the 2018 Farm Bill) into law.
- Among the broad-ranging provisions included in the law, it legalizes the cultivation and sale of hemp at the federal level, effective January 1, 2019.
- Hemp and cannabidiol (CBD) businesses have thrived in numerous state jurisdictions in which such products are legal. Federal legalization means that hemp producers and businesses that deal in hemp and hemp-derived products, such as CBD, are now free to pursue their businesses more aggressively, and with less concern that a seismic shift in enforcement priorities could result in their investigation or prosecution by federal authorities.
To find out more about the 2018 Farm Bill and the implications for those participating in the hemp and CBD industries, please click here.