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James Holloway

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The Ninth Circuit recently issued a key Prop 65 decision that could have broader implications for businesses subjected to its regulatory regime. 

Enacted via a ballot initiative, Prop 65 requires a company to warn consumers when one of its products contains a chemical known to the state of California to be carcinogenic or harmful to reproductive health.  In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) placed glyphosate on its list of chemicals requiring a warning after the International Agency for Research on Cancer (IARC) concluded that the herbicide was “probably carcinogenic.”  Shortly after, a group of agricultural and business groups sued to enjoin California from requiring glyphosate warnings, arguing that the requirement violated the First Amendment.  The Ninth Circuit agreed.  See Nat’l Ass’n of Wheat Growers v. Bonta,– F.4th–, 2023 WL 7314307, at *2 (9th Cir. Nov. 7, 2023).Continue Reading Citing First Amendment Issues, Ninth Circuit Kills Prop 65 Glyphosate Warning Requirement

The Ninth Circuit recently issued an important decision for consumer companies that routinely face false advertising litigation.  Resolving an issue that had split district courts in the circuit, the panel held that when “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.”  McGinity v. Procter & Gamble Co.,– F.4d –, 2023 WL 3911531, at *4 (9th Cir. June 9, 2023).  The court also issued a memorandum affirming the dismissal of a complaint against Icelandic Provisions on the same grounds; Covington represented the company in that matter.  See Steinberg v. Icelandic Provisions, Inc., 2023 WL 3918257, at *1 (9th Cir. June 9, 2023).  With these decisions, the Ninth Circuit joins the growing consensus that back labels must be considered when a challenged front label claim is ambiguous.  See, e.g., Foster v. Whole Foods Mkt. Grp., Inc., 2023 WL 1766167, at *3 (E.D.N.Y. Feb. 3, 2023).Continue Reading Ninth Circuit Confirms Courts Should Consider Whether Back Panel Disclosures Help Clarify Ambiguous Front-of-Pack Claims

On October 17, the District of Massachusetts added to the growing line of federal courts that have held a mere data breach, without additional harm, is insufficient to grant customers Article III standing.  See Webb v. Injured Workers Pharmacy, LLC, 2022 WL 10483751, at *1 (D. Mass. Oct. 17, 2022).  In February 2022, a home delivery pharmacy notified over 75,000 affected customers that hackers broke through its defenses and accessed patients’ personal data.  Two of these customers filed a putative class action against the pharmacy, alleging various tort and contract theories.  The court dismissed their claims for lack of standing, holding that plaintiffs had failed to allege any actionable harm stemming from the data breach despite their allegations that the breach caused them significant emotional harm.Continue Reading Data Breach, Without Allegations of Misuse, Isn’t Enough for Article III Standing

Kellogg’s defeated yet another putative class action filed by prolific litigant Spencer Sheehan alleging that one of its Pop-Tarts products misleads consumers.  See Reinitz v. Kellogg Sales Co., 2022 WL 1813891 (C.D. Ill. June 2, 2022). 

Asserting state law consumer fraud theories, plaintiff argued that Kellogg’s Frosted Chocolate Fudge Pop-Tarts mislead consumers because they do not contain any fudge whatsoever.  According to plaintiff, true fudge contains butter and milk (i.e. “milkfat”), but Kellogg’s instead uses cheaper and lower quality “vegetable oils and whey” substitutes.  In support of these allegations, plaintiff pointed to a book by Molly Mills, a woman she described as “one of the today’s leading authorities on fudge.”  But plaintiff’s reliance on Mills’s book ultimately proved fatal to her claims.

Continue Reading Fudge Without Milkfat Isn’t “Fudged”

In a typical situation, defendants argue that plaintiffs lack standing and plaintiffs insist otherwise.  But, sometimes, the lack of standing can work in plaintiffs’ favor.  In Benton v. CVS Pharmacy, Inc., 2022 WL 1750462 (N.D. Cal. May 31, 2022), plaintiffs took the unusual step of arguing that they lacked Article III standing to bring their claims in federal court in order to have their case remanded back to state court.Continue Reading To Defeat Dismissal, Plaintiffs Win By Losing Standing

Last week, Dryers defeated two putative class actions filed by the same law firm, Spencer Sheehan, alleging that representations on the packaging of Häagen-Dazs chocolate-dipped ice cream bars misled consumers about the product’s chocolate coating.  In both cases, plaintiffs alleged that the representation that the ice cream is dipped in “rich milk chocolate” is false, since the addition of vegetable and coconut oil to the chocolate coating “fundamentally changes the nature of the bar’s coating.”  According to plaintiffs, chocolate is “a food prepared from ground roasted cacao beans,” that are ground to produce cocoa mass or chocolate liquor and then combined with dairy ingredients, sweetener, and flavorings—not vegetable oil.  Plaintiffs also pointed to FDA regulations defining chocolate and related labeling requirements to argue that food companies may not market their products as chocolate when they are mixed with non-cacao plant oils. 

Dryers filed motions to dismiss both cases, and the Southern District of New York and the Southern District of Illinois granted the motions, but on different grounds.  While S.D.N.Y. held that no reasonable consumer would be misled by the product packaging, S.D. Ill. concluded that the Federal Food Drug and Cosmetic Act preempted the state claims at issue.  Neither court found the plaintiffs’ appeals to FDA regulations availing. Continue Reading Dryers Wins Back-to-Back Dismissals in Consumer Deception Lawsuits

A recent Ninth Circuit decision emphasizes that it will vacate class settlement approvals whenever district courts fail to apply the proper legal standards to assess class settlements.  In Saucillo v. Peck, 2022 WL 414692 (9th Cir. Feb. 11, 2022), the underlying dispute concerned allegations that a trucking company failed to follow a California labor law requiring employers to reimburse employees for expenses incurred on the job.  After the court denied a contested motion for class certification, the parties agreed to a class settlement and the district court approved the agreement under Rule 23(e).  On appeal, an objector raised—for the first time—that the district court incorrectly analyzed whether the settlement was fair given that the court had not previously certified the class.Continue Reading 9th Circuit Holds that Failure to Apply Correct Legal Standard is Fatal to Class Settlement Approval Even if Not Argued Before District Court

Last week, in Vitort v. The Kroger Co., No. 3:20-cv-01317-AC, 2022 U.S. Dist. LEXIS 18291 (D. Or. Feb. 1, 2022), the District of Oregon dismissed a putative class action claiming that a blackberry spreadable fruit product labeled “Just Fruit” misleads consumers into believing it contains only blackberry fruit, when its primary ingredient is fruit syrup with significant added sugars and other additives.  Defendants argued the product’s label is accurate because all of its ingredients—including the sugar—are derived from fruit.Continue Reading “Just Fruit” Does Not Mean Only Unprocessed Fruit