A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.
Food and Beverage
Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function Claims”
By Amy Heath & Cort Lannin on
Recent decisions from the First and Ninth Circuits may help defendants facing false advertising challenges to certain types of labeling statements known as “structure/function claims.” Three courts have held that such challenges were preempted by the Food, Drug, and Cosmetic Act (FDCA).…
J.M. Smucker Defeats Putative VPPA Class Action on Jurisdictional Grounds
By Alice Phillips on
A Northern District of California court recently dismissed a putative California class action against The J.M. Smucker Company (“J.M. Smucker”) for lack of personal jurisdiction because it did not purposefully target California in operating its marketing website for the Folgers coffee brand. See Carroll v. J.M. Smucker Co., No. 3:22-cv-08952 (N.D. Cal. June 15, 2023).…
Continue Reading J.M. Smucker Defeats Putative VPPA Class Action on Jurisdictional Grounds
Federal Law Preempts Plaintiffs’ Challenges to the Label of a Glucosamine Dietary Supplement, Ninth Circuit Holds
By Kaixin Fan & Cort Lannin on
Posted in Food and Beverage, Ninth Circuit
The Ninth Circuit recently affirmed summary judgment in favor of a manufacturer of glucosamine dietary supplements, holding that plaintiffs’ state law claims sought to impose requirements different from those under the federal Food, Drug, and Cosmetic Act (FDCA) and were thus preempted. Hollins v. Walmart Inc., 67 F.4th 1011 (9th Cir. 2023).
Plaintiffs’ case targeted Walmart’s “Spring Valley Glucosamine Sulfate” product, later relabeled “Spring Valley Glucosamine Sulfate Potassium Chloride,” alleging that the product was mislabeled under California law because it did not actually contain glucosamine sulfate or glucosamine sulfate potassium chloride. Rather, plaintiffs alleged that the product was comprised only of glucosamine hydrochloride, which purportedly does not offer the same clinical benefits. The Ninth Circuit, in a split decision, affirmed the district court’s conclusion that plaintiffs’ claims under California law were preempted.…
Challenge to “I Can’t Believe It’s Not Butter! Spray” Labeling Is Preempted, Ninth Circuit Says
By Alice Phillips on
In a decision that boosts defendants’ chances of defeating mislabeling claims at the pleading stage, a Ninth Circuit panel held that that the Food Drug and Cosmetic Act (“FDCA”) expressly preempted plaintiffs’ claims. See Pardini et al. v. Unilever United States, Inc., No. 21-16806 (9th Cir. Apr. 18, 2023). …
New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid
By Kaixin Fan & Cort Lannin on
Posted in Advertising & Marketing, Food and Beverage
Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading. …
Continue Reading New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid
Two Federal Courts Arrive at Opposite Conclusions in Suits Claiming “Natural Flavor with Other Natural Flavors” Is Misleading
By Kaixin Fan & Ashley Simonsen on
Posted in Food and Beverage, Litigation
A court in the Northern District of Illinois and a court in the Middle District of Florida recently arrived at opposite conclusions in two very similar putative class actions, both of which alleged that the claim “natural flavor with other natural flavors” on drink labels was misleading because synthetic malic acid was present in the product.…
“100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled
By Kaixin Fan, Cort Lannin & Ashley Simonsen on
Posted in Consumer Products, Food and Beverage
A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club. Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022). Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material. Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse. Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” …
Aspirational Statements of “Sustainability” Not Actionable Under D.C. Consumer Protection Statute
By Alyssa Vallar, Andrew Soukup & Ashley Simonsen on
As plaintiffs continue to rely on the District of Columbia Consumer Protection Procedures Act (“CPPA”) to bring greenwashing suits, a recent D.C. Superior Court decision imposes limits on their ability to allege that a company’s general commitments to “sustainability” can constitute actionable misrepresentations.…
District of New Jersey Continues Third Circuit Trend of Finding Mere Exposure to Toxic Substances in Consumer Products Insufficient for Standing
By Kaixin Fan & Ashley Simonsen on
The District Court for the District of New Jersey recently dismissed a putative class action alleging that defendants sold baby foods with high levels of heavy metals, holding that plaintiffs failed to plead an injury sufficient to support standing. In re Plum Baby Food Litigation, No. 1:21-cv-02417-NLH-SAK, 2022 WL 16552786 (D.N.J. Oct. 31, 2022). This decision adds to the list of cases in the Third Circuit holding that merely alleging exposure to toxic substances in consumer products, without more, is insufficient to establish Article III standing. See Covington’s prior blog post on the trend in the Third Circuit here.…