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.

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

  • Christopher Leonard v. Mondelēz Global LLC, No 1:21-cv-10102-PAC (S.D.N.Y. – March 8, 2023): The Southern District of New York dismissed a class action complaint that alleged the labeling of the defendant’s chocolate sandwich cookies containing mint crème covered in a fudge coating mislead consumers because it purports to contain “fudge.” Plaintiff claimed the product did not comport with the plaintiff’s definition of “fudge,” because the product’s “fudge” is made with palm and palm kernel oil and not milkfat. The court held that “Fudge Covered,” without more, would not mislead a reasonable consumer into believing the product necessarily contained milkfat or butter, regardless of whether “Fudge Covered” refers to the product’s flavor or an ingredient, and that not a single source claims that milk and butter are essential fudge ingredients or that milkfat is necessary to make fudge and dismissed the New York and state consumer fraud claims. Opinion linked here.
  • Julian Foster v. Whole Foods Mkt. Grp. Inc., No. 22-cv-01240-ERK-RML (E.D.N.Y. – February 3, 2023): The Eastern District of New York court granted dismissal of a putative class action alleging that the front label of defendant’s fish oil capsules is false and deceptive because a reasonable consumer would believe that the product contains 1000mg of two types of Omega-3 fatty acids per capsule, when in fact the product contains only 300mg of Omega-3’s per capsule. The court held that the plaintiff’s claim failed, reasoning that a consumer would not be misled by the challenged labeling statement on the front of the package because the back label clarifies any ambiguity. The court dismissed the plaintiff’s GBL claims reasoning that, while the front label was ambiguous, it was not actually false. Leave to amend was denied. 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.

  • Cade Seljak, et al. v. Pervine Foods LLC, No 21-cv-09561-NRB (S.D.N.Y. – March 3, 2023): The Southern District of New York dismissed a putative class action alleging that the labeling of the defendant’s high-protein snack bars is false or misleading. Specifically, plaintiffs allege the use of the word “FIT” prompts consumers into believing the products are “healthy” when the products’ fat content exceeds the permissible level of fat in products labeled as “healthy” under the FDA regulations. The court noted that the term “healthy” did not appear on the product packaging, and the fat content is clearly disclosed on the ingredient panel. Additionally, the court noted that the products’ descriptions are those of desserts, such as milk & cookies, chocolate chip cookie dough, apple pie, and chocolate peanut butter. The court ruled that the defendant’s use of “FIT” does not amount to an implied nutrient content claim under federal law since it does not appear in association with the products’ fat content and therefore does not amount to misbranding. The court also dismissed the plaintiffs’ state statutory claims because they failed to show that a reasonable consumer was likely to be misled into believing the products are healthy when looking at the packaging as a whole, which includes dessert-like descriptions and clear statements of the fat and calorie content. Opinion linked here.
  • Janie Hawkins v. The Coca-Cola Co., No. 21-cv-08788-KMK (S.D.N.Y. – February 7, 2023): The Southern District of New York granted dismissal of a putative class action alleging the defendant’s “100% natural” piña colada-flavored beverage was false and misleading because it contained the artificial ingredient DL-malic acid. The court held that the plaintiff’s claim failed, stating that a reasonable consumer would not be misled by the challenged labeling statements because said consumer could look on the back of the package for clarification as to ingredients and the fruits contained therein. Further, the judge found the plaintiff’s claims of DL-malic acid’s alleged presence in the product were not supported by product testing and therefore were “conclusory statements that the court is not required to accept.” The court dismissed the plaintiff’s state law claims for breach of express warranty and fraud on the same grounds and denied leave to amend. 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.

  • Jeanne Matthews v. Polar Corp., No. 1:22-cv-00649 (N.D. Ill. – March 22, 2023): The U.S. District Court for the Northern District of Illinois dismissed a putative class action alleging the defendant misrepresented their lemon-flavored seltzer products. Specifically, the plaintiff argued that the products were represented as being flavored with real lemon when they allegedly contained only a small amount of artificial lemon flavoring. The court held that the plaintiff’s claim failed because a reasonable consumer would not be misled by the challenged labeling statements since the defendant made no claims as to the amount of lemon nor the type. The court noted that the product’s labeling says only “LEMON,” and a lemon-flavored seltzer water is what was promised and what the consumer actually received. The court further held that the plaintiff failed to sufficiently plead that there was a false or misleading statement on the label, and it dismissed the plaintiff’s state law claims for fraud, breach of warranty, negligent misrepresentation, and unjust enrichment on the same grounds. Opinion linked here.
  • Kathy Richburg, et al. v. Conagra Brands Inc. and Julie Ruiz v. Conagra Brands Inc., Nos. 22-cv-02420 and 22-cv-02421 (N.D. Ill. – February 8, 2023): The U.S. District Court for the Northern District of Illinois granted dismissal of two putative class-action cases, which both alleged that the marketing and labeling of the defendant’s microwave popcorn were false or misleading. Specifically, the plaintiffs claimed that the product’s representations, such as “natural” and “100% real ingredients,” were false or misleading when per- and polyfluoroalkyl substances (PFAS) could transfer from the microwave bags to the popcorn. The court held that the plaintiff’s claim failed, finding that a reasonable consumer would not be misled by the challenged labeling statements because consumers understand “ingredients” to be those items listed in the ingredient list mandated by the U.S. Food and Drug Administration (FDA). The FDA exempts substances that transfer to foods from processing equipment or packaging from disclosure as an “ingredient.” 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.

  • Lisa Slawsby v. Champion Petfoods USA, Inc., et al., No. 1:18-cv-10701-GAO (D. Mass. – March 27, 2023): The U.S. District Court of Massachusetts dismissed a putative class action alleging that marketing pet foods as “biologically appropriate” was false or misleading. The plaintiff asserted that the presence of heavy metals and Bisphenol A (BPA) rendered the representation false and that the dog food products were unsafe for consumption. The court held that the plaintiff failed to identify any objective basis for claiming the heavy metals and BPA in the pet food are excessive or unsafe. Further, since the plaintiff fed all of the food to her dog, who suffered no harm and presumably enjoyed the nutrition, the plaintiff “received the benefit of the bargain and [could not] use hindsight to re-bargain the exchange.” Opinion linked here.

  • Eduardo Hernandez, et al. v. Johnson & Johnson Consumer Inc., No 19-cv-15679-ZNQ-TJB (D.N.J. – March 24, 2023): The District Court of New Jersey dismissed with prejudice the plaintiffs’ amended class-action complaint alleging the use of “rapid-release gelcaps” on packaging for acetaminophen products misled consumers into believing they would relieve pain faster than other, less expensive acetaminophen products. The amended complaint sought only injunctive relief. The court dismissed the suit as the plaintiffs failed to allege that they planned to buy the defendant’s rapid-release gelcaps in the future. The court held that the plaintiffs could not show an “injury in fact” to establish Article III standing, because they are aware of the alleged harm caused by the product and would not purchase it again. The plaintiffs are represented by Simmons Hanly Conroy LLC. Opinion linked here.

  • Peter Hoffman v. Kraft Heinz Foods Co., No. 2:22-cv-06060-JLS-JEM (C.D. Cal. – February 7, 2023): The U.S. District Court for the Southern District of New York granted dismissal of a putative class action alleging that the defendant deceptively marketed its flavored drink mix as only containing natural flavors, when it actually contained artificial flavors. The court held that the plaintiff’s claim failed because they could not adequately demonstrate that the DL-malic acid in the flavored drink mix is (1) a flavor or (2) artificial. Additionally, the challenged labeling statements do not say the drink mix has “only” natural flavors. As such, the judge found that a reasonable consumer would not be misled. The court dismissed the plaintiff’s state law claims for fraud and breach of warranty on the same grounds and denied leave to amend. Opinion linked here.

Legislators in California and New York have proposed bills to ban five food additives that have purportedly been linked to health concerns such as cancer, neurodevelopmental issues, and hormone dysfunction. The five additives, brominated vegetable oil (BVO), potassium bromate, propylparaben, Red Dye No. 3, and titanium dioxide, are found in many food products. These substances are subject to regulation by the U.S. Food and Drug Administration (FDA), which allows their use in food.

  • In California, AB 418, which was introduced on February 2, 2023 and cosponsored by the Environmental Working Group (EWG). The bill was amended on April 13 to add penalties of up to $5,000 for initial violations, and up to $10,000 for each subsequent violation of the proposal’s restrictions. This bill seeks to prohibit the five ingredients listed above effective January 1, 2025. 
  • In New York, Senate Bill S6055A, introduced on March 27, 2023 also seeks to prohibit the additives effective January 1, 2025. This bill provides that in an action to enforce compliance, the recognition by the FDA of any of the substances as safe may not be alleged as a defense. 

Given that the federal government has expressly authorized the use of certain substances that these bills would potentially prohibit, legal challenges to the bills are likely if they are enacted into law.

Perkins Coie is pleased to announce the launch of our seventh annual Food & Consumer Packaged Goods Litigation Year in Review. Accompanying the 2022 report are infographics that highlight key litigation outcomes, filing data, and industry trends. As always, the report offers a summary of the past year’s key litigation outcomes, regulatory developments, and filing data using metrics from our proprietary database, developed by our food and consumer packaged goods (CPG) litigation team in order to track and understand trends in this growing area.

Attorneys in Perkins Coie’s Food Litigation practice have defended false labeling cases across a broad range of products and industries. As our practice area has expanded, we have continued to pay close attention to the litigation environment for emerging trends, important developments in case law, and related regulatory guidance across CPG product categories, including personal care products, pet food, cannabis products, and supplements. We use this real-time tracking to help advise clients on risk and develop effective defense strategies for companies facing class litigation. This data further informs the national conversation on the growing area of food law, including law school courses and media coverage.

In 2022, 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. As in past years, plaintiffs’ lawyers are still mining regulatory handbooks, product shelves—and in 2022 in particular—laboratories in search of new theories with which to attack the industry.

Perkins Coie has been a leader in defending food and CPG litigation cases, securing favorable, precedent-setting results for its clients. The nationally recognized Retail & Consumer Products industry group includes attorneys focused on food and beverage and consumer packaged goods. Our food litigation team is regularly called upon to comment on national trends driving the industry, including in trade publications and national media outlets.

To learn more, read the full report here.

Buried within the thousands of pages of the Consolidated Appropriations Act of 2023 is the most significant statutory expansion to the U.S. Food and Drug Administration’s (FDA) authority over cosmetics since 1938. On December 29, 2022, President Biden signed the bill into law. Among the spending bill’s many provisions is the Modernization of Cosmetics Regulation Act of 2022 (MOCRA), which will have lasting effects on the cosmetics industry as the FDA will have expanded authority to regulate cosmetic products.

MOCRA

Specifically, MOCRA makes several important changes to federal oversight of cosmetics, including:

  • Mandatory recall authority over cosmetics. For the first time, the FDA will have mandatory recall authority over cosmetic products when the agency determines with a reasonable probability that (1) the cosmetic product is adulterated or misbranded, (2) the use of or exposure to the cosmetic will cause serious adverse health consequences or death, and (3) the responsible entity has refused to voluntarily cease distribution and/or recall the violative cosmetic product.
  • Adverse event reporting and recordkeeping. MOCRA requires the reporting of serious adverse events associated with the use of cosmetic products in the United States. A “serious adverse event” includes, among other things, inpatient hospitalization or death. Responsible parties required to report adverse events include those who manufactured, packed, or distributed such products whose name appears on the cosmetic product’s label. Responsible parties are required to keep records on adverse events associated with the use of the cosmetic for three years (for small businesses) to six years (for other businesses).
  • Good manufacturing practices for cosmetic facilities. MOCRA provides the FDA the authority to promulgate good manufacturing practices (GMPs) regulations for facilities manufacturing or processing cosmetic products. GMPs are regulatory requirements regarding hygiene practices, process controls, and sanitation, among other matters. The FDA already has GMPs in place for many other product categories, such as drugs, food, and dietary supplements. The FDA last issued revised nonbinding cosmetic GMP guidance in 2013, but the agency has not previously promulgated GMP regulations for cosmetics. Failure to meet these new cosmetic GMPs could result in a finding that the cosmetic is adulterated. The regulations may provide the FDA the authority to inspect records to demonstrate compliance with GMPs. The bill requires the FDA to also promulgate simplified GMPs for smaller businesses. Before issuing the implementing regulations governing GMPs, the bill requires the FDA to consult with cosmetics manufacturers and consumer organizations. The bill requires the FDA to promulgate these GMP regulations within two years of the bill’s enactment and requires final regulations within three years of enactment.
  • Identification of fragrance allergens on product labels. MOCRA requires cosmetic labels to identify each fragrance allergen in a product once the FDA issues its forthcoming fragrance allergen rule, which will consider European Union (EU) and other international requirements. If a cosmetic product label does not include required fragrance disclosures, it will be considered misbranded under section 602(b) of the Food, Drug, and Cosmetic Act (FDCA).
  • Asbestos and perfluoroalkyl and polyfluoroalkyl substances (PFAS) in cosmetics. MOCRA requires the FDA to issue proposed regulations to establish and require standardized testing methods for detecting and identifying asbestos in talc-containing cosmetic products. In addition, MOCRA mandates that the FDA issue a report regarding the use of PFAS in cosmetic products and the scientific evidence regarding the safety and risks associated with the use of PFAS in cosmetics.
  • Preemption. MOCRA expressly preempts state and local requirements that differ from MOCRA’s standards related to registration and product listing, GMPs, records, recalls, adverse event reporting, or safety substantiation. MOCRA also contains a savings clause and certain limitations regarding the law’s preemptive effect.

MOCRA and the larger Consolidated Appropriations Act of 2023 were signed into law on December 29, 2022. Many of MOCRA’s provisions will go into effect over time, with some becoming effective a year after the bill’s enactment and others awaiting finalized regulations. The cosmetic industry will have opportunities to provide notice and comment on proposed regulations.