Food Labeling

An oft-litigated issue in false-advertising class actions is whether a plaintiff can show that each class member relied on the challenged statement when they made their purchasing decision.  The Eighth Circuit recently offered an example of how this issue can pose a significant roadblock to class certification in In re…

Continue Reading Eighth Circuit Ices False Labeling Class Action on Predominance Grounds

In Davidson v. Sprout Foods, Inc., — F.4th —, 2024 WL 3213277 (9th Cir. June 28, 2024), a divided Ninth Circuit panel held that private plaintiffs can bring claims for violations of California’s food labeling law that mirror federal law requirements, even though private plaintiffs lack a cause of action to enforce federal law directly.  In reaching this conclusion, the court determined that the Federal Food, Drug, and Cosmetic Act (FDCA) does not preempt private enforcement of California’s Sherman Law, even though the Sherman Law incorporates the FDCA by reference and private plaintiffs typically cannot sue to enforce the FDCA.Continue Reading Split Ninth Circuit Panel Permits Private Plaintiffs to Use California Food Labeling Law to Enforce Federal Standards

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

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…

Continue Reading More Courts in N.D. Cal. Uphold Industry-Standard Method for Calculating Protein Content Claims

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