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).
Food and Beverage
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. …
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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.…
California Court of Appeal Allows “White Baking” Chips Claims to Proceed
By Regan Hines & Ashley Simonsen on
The California Court of Appeal recently reversed trial court judgments sustaining demurrers in two class action cases involving false advertising claims. In both cases the plaintiff alleged that he was misled to believe that “White Baking Morsels” or “White Baking Chips” contain white chocolate.
The defendants demurred on the ground that no reasonable consumer would believe that “White Baking” chips or morsels contain real white chocolate. The trial court agreed and entered judgment for the defendants. In both cases, the California Court of Appeal disagreed, holding that the plaintiff stated viable claims, and reversed.…
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Court Rejects Plaintiffs’ Post-Trial Bid For $140 Million In Statutory Damages Under New York False Advertising Laws
By Dillon Grimm & Andrew Soukup on
After prevailing in a class action trial regarding allegedly false advertising, plaintiffs sought $91 million in statutory damages under New York’s General Business Law (GBL), plus $49 million in prejudgment interest. In an opinion that will likely serve as an important precedent for future GBL cases – and could influence how aggressively plaintiffs pursue them – a court in the Northern District of California rejected plaintiffs’ request, and instead awarded $8.3 million in statutory damages, plus interest. Montera v. Premier Nutrition Corp., 2022 WL 3348573 (N.D. Cal. Aug. 12, 2022). The plaintiffs’ requested award, the court held, was “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”…
Fudge Without Milkfat Isn’t “Fudged”
By James Holloway on
Posted in Consumer Products, Food and Beverage
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.
Plaintiffs Seek $140 Million In Statutory Damages After Trial Win
By Dillon Grimm & Andrew Soukup on
Posted in Food and Beverage, Litigation
A rare class action trial that resulted in a jury verdict against a defendant may set a precedent for the amount of statutory damages that can be recovered under New York’s General Business Law (GBL) when a class action proceeds to trial. After a jury found that Joint Juice deceptively labeled its beverages and awarded actual damages to the class, the plaintiffs moved for $140 million in statutory damages.…
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