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
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….
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
Welcome to our April + May combined report on food litigation, regulatory trends and events. We have a lot to report in the food world, with a number of litigation currents starting to form, and some new waves building. Let’s see what happened….
Cheesy Goodness? General Mills was hit with five putative class actions challenging its Annie’s mac and cheese marketing representations that the product is “Made with Goodness” when, in fact, it contains potentially harmful chemicals known as ortho-phthalates which are linked to asthma, breast cancer and diabetes. The cases are pending in the Southern and Eastern Districts of New York and the Northern District of California. The Kraft Heinz Company was named in similar suits filed in the Northern District of California and the Northern District of Illinois.
Sparkling Water/Seltzer: A number of companies were named in putative class actions alleging that various sparkling water products misrepresented the nature of the flavoring agents used. For example, a complaint against Whole Foods (filed in the Southern District of New York) alleges that the Lemon Raspberry Italian Sparkling Mineral Water does not contain an appreciable amount real lemons or real raspberries. Similarly, a complaint against Kroger (filed in the Northern District of California) challenges the non-disclosure of artificial flavoring chemicals. Finally, Molson Coors Beverage Company was named in a class action alleging that its “Vizzy” brand hard seltzers are marketed as containing a significant amount of healthful qualities and nutrients such as vitamin C which, according to the complaint, falsely implies that alcoholic beverages could provide health benefits.
More Vanilla: April and May saw two new vanilla filings, including a case against Prairie Farms Dairy, Inc., alleging that the defendant’s “Premium Vanilla” ice cream was falsely labeled as containing “natural colors and flavors” (Northern District of Illinois) and a case against Hostess alleging that its vanilla wafer products were falsely advertised as containing real vanilla (Missouri state court).
More Natural: The past two months have seen a slew of new “natural” filings in the food industry. Such filings challenge of synthetic preservatives and other ingredients including citric acid (3 cases), ascorbic acid (1 case), artificial coloring (1 case), and monk fruit extract, which is alleged to be natural but processed with artificial solvents and additives (1 case). The filings were made across the country, including in Missouri state court (4 cases), the Central District of California (1 case), and the Southern District of Illinois (1 case). In addition to the natural allegations relating to monk fruit extract, a case against Chobani also challenges claims relating to “complete nutrition,” “advanced nutrition” and the use of a “+” symbol in connection with prebiotics and probiotics which, according to the complaint, falsely suggests that the product has more pre- and probiotics than other comparable foods.
Coffee, Please: We have also seen an uptick in coffee-related class actions, with two actions alleging that ground coffee products artificially inflate the number of cups that can be made from their contents given the directions for use.
Delivery Fees: April and May saw a continued trend of challenges relating to food delivery charges during the pandemic, with cases filed against GrubHub, alleged to have charged an undisclosed $2.50/delivery fee on top of its $9.99/month “Unlimited Free Delivery” for GrubHub+ users, and against Panera, alleged to have falsely promised a flat delivery charge on food deliveries ordered through Panera’s app and website. Both cases are pending in California state court.
Welcome to our selected regulatory and litigation highlights impacting the food and beverage industry in March 2021. The food court saw its own brand of March Madness with disputes over food delivery fees kicking off this month’s update.
Hidden Delivery Fees
A number of suits were filed in March regarding undisclosed delivery fees. …
Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry. February saw another win for industry on the vanilla front, a preemption win in California state court, and FDA continuing with COVID-19-related warning letters and foreign supplier verification enforcement. Let’s take a look….
Industry scored another win on…
Welcome to our monthly digest of litigation and regulatory highlights impacting the food and beverage industry. As it has been for many months, the story was mostly about what’s going on in the food court. Let’s take a look….
Vanilla, vanilla, and more vanilla….The plaintiff’s bar remains skeptical of any product labeled as vanilla. …