Food Labeling

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

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”

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.Continue Reading Aspirational Statements of “Sustainability” Not Actionable Under D.C. Consumer Protection Statute

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.”Continue Reading Court Rejects Plaintiffs’ Post-Trial Bid For $140 Million In Statutory Damages Under New York False Advertising Laws

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”

Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility.  In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA guidance reaffirms that companies may

On May 24, Kellogg Sales Co. defeated a third putative class action alleging that Strawberry Pop-Tarts mislead consumers, having defeated two other putative class actions in March.  Represented by prolific plaintiffs’ firm, Sheehan & Associates, Stacy Chiappetta, Kelvin Brown, and Anita Harris each sued Kellogg after realizing that the filling in Strawberry Pop-Tarts contains not just strawberries, but also small amounts of dried pears, dried apples, and the food dye red 40.  But two federal judges in Illinois and a third in New York have now agreed with Kellogg that the packaging of Strawberry Pop-Tarts is not misleading for the simple reason that the pastries in fact contain strawberries.Continue Reading Kellogg Beats Pop-Tarts Class Actions

The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.Continue Reading Consumer Survey Did Not Constitute Common Proof of Deception or Materiality

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

In a major victory for manufacturers of food and beverage products fighting acrylamide litigation under California’s Proposition 65 statute, the Ninth Circuit on March 17 upheld a preliminary injunction barring new lawsuits to enforce Prop. 65’s warning requirement for cancer as applied to acrylamide in food and beverage products, finding that the statute’s compulsory warnings are “likely misleading” and “controversial.”

Prop. 65 provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer . . . without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”  Cal. Health & Safety Code § 25249.6.  In October 2019, California Chamber of Commerce (“CalChamber”) filed suit for declaratory and injunctive relief against the Attorney General of California, seeking to halt acrylamide litigation brought under Prop. 65.  It argued that Prop. 65’s warning requirement violated its members’ First Amendment right not to be compelled to place “false and misleading” acrylamide warnings on their food products.  Acrylamide is often found in baked or fried foods, and has also been identified in products like coffee, almonds and black olives. 

CalChamber further moved for a preliminary injunction seeking a prohibition on new lawsuits to enforce the Prop. 65 warning requirement for cancer as applied to acrylamide in food and beverage products.  The Council for Education and Research on Toxics (“CERT”) intervened as a defendant and argued that, as a private enforcer of Prop. 65, an injunction would “impose an unconstitutional prior restraint on its First Amendment rights.”  Continue Reading 9th Circuit Upholds Preliminary Injunction Against Prop. 65 Acrylamide Lawsuits