Food and Beverage

Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading.  In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances.  In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. Continue Reading A Closer Look: The Importance of Expert Testimony for “Reasonable Consumer” Claims

A court in the Southern District of New York recently dismissed a lawsuit alleging that an “All Natural” representation on the front label of defendant’s beverage products was false and misleading because the products contained synthetic citric acid and used vegetable and fruit juice concentrates for color.  Valencia v. Snapple Beverage Corp., 2024 WL 1158476 (S.D.N.Y. Mar. 18, 2024).Continue Reading SDNY Court Dismisses False Advertising Lawsuit Alleging “All Natural” is Misleading Based on Alleged Use of Synthetic Citric Acid

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

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.Continue Reading Illinois Federal Court Dismisses One False Advertising Suit Based on Malic Acid, While Sustaining Another

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).Continue Reading Trio of Cases Supports Preemption Arguments for False Advertising Suits Challenging “Structure/Function Claims”

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

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.Continue Reading Federal Law Preempts Plaintiffs’ Challenges to the Label of a Glucosamine Dietary Supplement, Ninth Circuit Holds

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). Continue Reading Challenge to “I Can’t Believe It’s Not Butter! Spray” Labeling Is Preempted, Ninth Circuit Says

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

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.Continue Reading Two Federal Courts Arrive at Opposite Conclusions in Suits Claiming “Natural Flavor with Other Natural Flavors” Is Misleading