Pooja S. Nair is a associate at Ervin Cohen & Jessup. She advises meals and beverage purchasers, startups and different companies on points together with employment, commerce secrets and techniques, partnership disputes, contract negotiations and mental property. Cate Veeneman is an lawyer within the Litigation Division of Ervin Cohen & Jessup and focuses on basic business litigation issues.
Regardless of the COVID-19 pandemic, 2020 noticed extra false promoting meals and beverage instances filed than any 12 months prior, persevering with a development on this space. 100 seventy-seven actions have been filed in 2019, up from 164 in 2018, and 145 in 2016 and 2017. To place these numbers in context, there have been solely 53 of those instances filed in 2011.
Beneath the Biden administration, each the Federal Commerce Fee and Meals and Drug Administration have indicated that regulating labeling, requirements of identification, and promoting are a precedence. Moreover, the Home Appropriations Committee directed the FDA to prioritize a few of these labeling and product requirements of identification points to extend readability for shoppers.
Under, we assess the state of some present instances and developments we anticipate seeing via the top of the 12 months and past.
Environmental and Sustainability Claims
Firms touting the environmental actions and sustainability of their merchandise of their promoting and labeling are more and more going through scrutiny and lawsuits. These lawsuits allege that corporations “greenwash” shoppers by claiming to be environmentally pleasant in distinction to pollution-generating and unsustainable.
In February 2021, shopper teams filed a grievance letter with the FTC in opposition to Smithfield Meals, claiming the corporate’s portrayal of its farming course of as environmentally pleasant is misleading and deceptive. The FTC has but to take motion in opposition to Smithfield on these claims. It’s possible that related claims in opposition to meat processors will proceed to be filed.
In Could 2021, a class-action go well with was introduced in opposition to Hefty’s recycling luggage, which have been marketed as “excellent for all of your recycling wants.” The lawsuit alleged the baggage weren’t recyclable and have been indistinguishable from common plastic luggage. Though many of those sustainability lawsuits contain plastic merchandise reasonably than meals and beverage merchandise, producers that extoll the virtues of their packaging or declare that some merchandise are significantly recyclable should guarantee they’re able to help such claims.
In June 2021, an environmental nonprofit group filed a lawsuit in opposition to Coca-Cola in Washington, D.C., for false promoting underneath the District’s shopper safety legal guidelines, alleging that the corporate “greenwashes” shoppers by promoting sustainable options whereas being a big company polluter.
Vanilla Lawsuits Proceed, with Restricted Success
Up to now three years, vanilla flavoring has been the main target of the biggest variety of false promoting instances filed concerning a single phrase. Claims allege that defendants’ “vanilla”-labeled merchandise comprise flavoring elements that don’t come from vanilla beans. Up to now few years, courts have thought-about and dismissed claims in opposition to Wegmans vanilla ice cream, Westbrae Pure’s Natural Unsweetened Vanilla Soymilk and Blue Diamond’s vanilla almond milk. Some claims filed in 2020 and 2021 have already been dismissed, and defendants proceed to have success with early dismissal of those claims. The previous few months alone have seen a string of rejections by the courtroom of those vanilla instances, with Dealer Joe’s, Entire Meals and Mars Wrigley Confectionery, the maker of Dove ice cream bars, all defeating vanilla false promoting claims.
Within the Mars case, plaintiffs allege that the corporate misrepresented the ice cream bar on the packaging by claiming it “tastes like vanilla” when in actuality the vanilla flavoring didn’t come completely from pure sources. The courtroom dismissed the case on the grounds that at no level was it represented that the flavoring got here completely from pure sources, however reasonably that the product “tastes” like vanilla, which the courtroom famous it does. The case was dismissed.
Past Vanilla: Different Flavors
Regardless of steadily leading to a dismissal, plaintiff attorneys are decided to proceed making an attempt their luck with flavoring lawsuits, branching out to a number of new merchandise. Most not too long ago, plaintiff corporations have had their eyes set on widespread snack merchandise. For instance, a case was filed in Illinois in opposition to Frito-Lay North America alleging that the snack maker falsely marketed its Tostitos chips as having a “trace of lime” when, in actuality, the chips’ lime style comes from synthetic elements, not precise limes.
The identical plaintiff’s agency filed the same case regarding TGI Fridays branded onion ring snacks, alleging that producer Inventure Meals falsely marketed the product as “onion snacks” when the product doesn’t comprise any precise onions. Particularly, the plaintiff alleges that, by referring to the product as “onion snacks,” the defendant has misrepresented the product as an inexpensive shopper would assume the meals would comprise onions “in an considerable, non de minimis quantity[.]”
Glowing Water Wars
Numerous glowing water manufacturers have been hit with false promoting claims, primarily associated to the flavoring of those drinks. That is as the worldwide glowing water market, valued at $29.71 billion in 2020, is predicted to broaden at a compound annual progress fee of 12.6% from 2021 to 2028, Grand View Analysis reported. Some of these lawsuits are prone to proceed trending as glowing water expands its market share. Nevertheless, much like weight-reduction plan soda instances that have been resolved in 2019 and 2020, it’s possible that a few of these flavoring instances might be resolved on the pleading levels.
In April, two meals retailers — Entire Meals and Kroger — have been hit with fits in regards to the quantity of fruit used of their retailer model glowing waters.
The buyer grievance filed in opposition to Kroger within the Northern District of California alleges the packaging for Kroger glowing water merchandise bought with flavors comparable to “Black Cherry,” “White Grape” and “Kiwi Strawberry” is deceptive as a result of the waters are purportedly flavored artificially reasonably than with extracts of the fruits. It claims the corporate’s “packaging, labeling and promoting scheme for these merchandise is meant to present shoppers the impression that they’re shopping for a premium, all-natural product as a substitute of a product that’s artificially flavored.” The plaintiff asserts the flavoring within the drinks comes from malic acid, “an artificial chemical manufactured in a petrochemical manufacturing facility from petroleum feedstocks.” Kroger has filed a movement to dismiss the lawsuit, which is about to be heard in January 2022.
“All Pure” Claims Proceed With out FDA Steering
Litigation concerning merchandise’ use of the time period “all pure” stays prevalent in mild of the FDA’s reluctance to supply steering regarding the that means of the time period “pure.” Notably, the FDA’s not too long ago launched listing of meals security and labeling steering matters that it anticipates issuing by June 2022 didn’t embrace steering on “pure” labeling.
Form Bar Plaintiffs Granted Class Certification. On March 24, a federal choose in New York licensed three courses of plaintiffs in a litigation in opposition to Form LLC through which plaintiffs allege that Form deceptively marketed a number of merchandise as “all pure” and “non-GMO” when in reality the merchandise comprise artificial and genetically modified elements. The courtroom granted certification even though the plaintiffs couldn’t present a concrete definition of the time period “pure.”
McCormick Settles “Pure” Spices Class Motion. In Could, events in a litigation regarding McCormick’s use of the time period “pure” to promote a number of of its merchandise filed a movement for preliminary approval of a class-action settlement. The litigation rests upon plaintiff’s allegations that McCormick misrepresented a number of sorts of its spices and seasoning merchandise by labeling them as “pure” once they contained artificial, synthetic and/or genetically modified elements, together with corn starch, white corn flower and citric acid. If authorized, the settlement settlement dictates that McCormick would pay a complete of $3 million to the putative settlement class. McCormick would additionally agree to switch the labeling on its merchandise and web site to take away all representations of “pure” or “all pure” from the contested merchandise’ labeling.
Plaintiffs Search Certification of Client Class In opposition to Snapple. Plaintiffs filed a nationwide class-action lawsuit alleging that Snapple Beverage Co. and Keurig Dr Pepper Inc. engaged in misleading promoting by advertising and marketing quite a lot of Snapple drinks as “all pure” when in actual fact the drinks contained added coloring in addition to quite a lot of vegetable and fruit juice concentrates. Plaintiffs search to characterize a nationwide class of purchasers alleging quite a lot of claims, together with unjust enrichment and breach of specific guarantee.
Submit and Kellogg Settle Added Sugar Cereal Class Actions
Federal courts in California have seen an uptick in proposed settlements in added sugar instances. In June, a federal choose in northern California authorized a $15 million class-action settlement in a case involving Submit Meals’ cereals. Plaintiffs allege that Submit violated quite a lot of state shopper safety legal guidelines by deceptively advertising and marketing high-sugar cereals with well being and wellness claims. Beneath the settlement, Submit pays $15 million to the category and conform to cease ensuring claims on its cereal, together with “no excessive fructose corn syrup,” “much less processed,” “healthful,” “sensible” and “nutritious” on merchandise the place 10% or extra of the energy come from sugar.
Equally, in March, the plaintiff, in a near-identical lawsuit involving Kellogg cereals comparable to Raisin Bran and Frosted Mini-Wheats, sought approval of a settlement settlement reached between the events. If authorized, Kellogg would pay $13 million to the settlement class and conform to cease ensuring claims on its cereal, together with “coronary heart wholesome” and “calmly sweetened.”
The rise in settlements is probably going tied to the FDA’s failure to create an official definition for “wholesome” labeling, regardless of asking for public remark in September 2016. With out official FDA steering, trade confusion and shopper class actions on “wholesome” labeling are prone to proceed. The FDA not too long ago introduced its plan to conduct quantitative shopper analysis on symbols that might be used on merchandise to convey the nutrient content material declare “wholesome.” The purpose of this analysis is to develop symbols by which shoppers might rapidly decide what well being advantages a meals or beverage they select might need.
Tendencies and Takeaways
Within the wake of the pandemic, shopper class actions and false promoting instances in opposition to meals and beverage corporations continued to develop. The lawsuits filed thus far in 2021 point out this litigation development will proceed, and that plaintiffs’ corporations are focusing on trending meals and beverage merchandise. Beneath the Biden administration, regulatory companies, together with the FDA and the FTC, have indicated they are going to take a extra lively position in issuing requirements of identification and clarifying laws. Listed here are 4 takeaways for the 12 months forward:
Wholesome claims: Whereas “wholesome” false promoting instances stay pervasive in 2021, current bulletins by the FDA present hope that we are going to lastly obtain some steering concerning correct utilization of “wholesome” phrases within the not too distant future.
Synthetic flavoring: Though there was a rise within the variety of instances filed, this is not going to essentially translate to a rise in victories. A number of of the instances have been filed by the identical group of plaintiff corporations which are infamous for submitting a whole bunch of lawsuits alleging false promoting causes of motion based mostly on the usage of synthetic flavoring. These lawsuits are more and more being dismissed within the early levels of litigation for failure to allege a viable declare.
“All pure” instances: Plaintiffs proceed to search out traction with “all pure” instances, in mild of the FDA’s reluctance to supply extra steering on what precisely qualifies as “pure.” With out additional steering from the FDA, it’s possible that class certifications and settlements will proceed.
Added sugar instances: In mild of the FDA’s failure to supply additional steering on the that means of “wholesome,” defendants will possible choose to settlement putative class actions reasonably than see the litigation via to trial.