As advertisers wait to see what the FTC will do after sending 700 warning letters related to influencers and incentivized reviews, the NAD has been resolving disputes on similar issues. Yesterday, NAD announced a new decision involving incentivized reviews. Although the decision is consistent with previous cases in this area, there are some nuances worth

Welcome back from the annual food coma known as Thanksgiving dinner.  If you’re still dreaming of cranberries, stuffing, and pumpkin pie, continue the gastronomic journey with our monthly wrap up of what’s been going on in the food court, NAD’s opining on use of emojis to convey advertising claims , and highlights from FDA’s recent

If the summer slide and the start of school kept you too busy to follow what’s going on in the food scene, we hear you!  Catch up on key developments below in this issue of our Food Industry Litigation and Regulatory Highlights.

The Courts Were Kind to the Food Industry This Summer

This summer brought a series of class action victories to the food industry, including a trio of decisions from the Second and Ninth Circuits, both long-time hot beds for false advertising class actions, as well as four dismissals from the Southern District of New York.

At the appellate level, the Second Circuit affirmed the dismissal of a putative class action challenging Starbucks’ claim that its drinks are the “best coffee for you” and that its coffee is “watched over … from the farm to you,” despite the use of pesticides to kill roaches at certain retail locations.  The Court ruled that the challenged claims were not specific enough to misrepresent a quality or characteristic of Starbucks’ coffee, and that no reasonable consumer would interpret them to suggest anything about the use of pesticides in Starbucks’ stores.

The Ninth Circuit decertified a class of consumers claiming that Coca-Cola falsely labels its drinks as having no artificial flavors when they contain phosphoric acid, ruling that consumers lacked standing to pursue injunctive relief.  According to the Court, the plaintiffs’ claims that they “would consider purchasing” Coke in the future if certain disclosures were included or if the product’s labels were truthful were insufficient to show an actual or imminent threat of future harm.
Continue Reading Food Industry Litigation and Regulatory Highlights, July – September 2021

Last week, we posted about an NAD case involving green claims that Georgia-Pacific made for its Quilted Northern Ultra Soft & Strong Bathroom Tissue. In that post, we examined issues related to how a company substantiates claims about its present achievements and future goals. Today, we’ll look at the same case, but focus on issues

As more companies develop Environmental, Social, and Governance (“ESG”) goals and advertise their progress towards those goals, we’re starting to see more challenges to those ads. Most of the challenges come from plaintiffs’ attorneys or competitors, but today’s post is about an inquiry that NAD initiated itself into claims that Georgia-Pacific made for its Quilted

The dietary supplement and personal care product space continued to see enforcement on false CBD, COVID, and fertility claims as well as related litigation involving “germ-killing” claims on hand sanitizers and wipes.  Messy stuff…Let’s take a look…

LITIGATION

Personal Care Products

In a blow to the trending “pink tax” theory of liability in consumer class actions, in May, the Eighth Circuit ruled that various personal care product manufacturers and retailers did not violate Missouri’s anti-discrimination laws by charging more for products marketed towards women as compared to allegedly identical products that were either marketed towards men or utilized gender-neutral marketing.  The Court found that the plaintiff “mistakes gender-based marketing for gender discrimination” and, in the process, ignores numerous differences between the products that account for the higher price tag.  There has been a handful of similar “pink tax” cases filed over the last year or two, but this is the first appellate court to rule on the issue.
Continue Reading Dietary Supplement and Personal Care Products Regulatory and Litigation Highlights – May and June 2021

For our June review, the action stays largely in the litigation arena with vanilla getting thrown out and sustainability as well as settlements getting called into question.  Meanwhile, environmental and health stakeholders are pushing FDA to ban PFAS from food contact uses as many in industry move away from PFAS-containing packaging.  How to digest all of it?  Consider some yogurt.  FDA updated the standard of identity, making it more delicious than ever.  Let’s take a look….

LITIGATION

Two More Vanilla Cases Get Thrown Out of the Food Court

In Robie v. Trader Joe’s Co., the Northern District of California dismissed claims that Trader Joe’s Almond Clusters cereal should have been labeled as “artificially flavored.”  The court held that, because the vanilla flavor can from both the vanilla plant and vanillin derived from tree bark, it was properly labeled as “Vanilla Flavored With Other Natural Flavors” under applicable FDA regulations and the plaintiff’s claims suggesting otherwise were preempted.  The court also found that the plaintiff had failed to allege facts suggesting that reasonable consumers would interpret “vanilla” on the product label to mean that the product’s flavor is derived exclusively from the vanilla plant, especially given that the challenged label did not contain any other words or pictures suggesting that the flavor was derived exclusively from the vanilla bean.
Continue Reading Food Industry Regulatory and Litigation Highlights – June 2021