This article was originally posted in Food Manufacturing on
Despite the COVID-19 pandemic, the number of putative class actions targeting the food and beverage industry increased in 2020 and show no signs of slowing down in 2021. The number of class actions filed against beverage companies in
Recent cases are increasingly focused on other claims made on food labels, including whether identified ingredients or flavors are artificial, the claims made about functions of certain ingredients, or claims made about aspects about the supply chain for those ingredients. Lawsuits continue to be filed about the origin of the ingredients, the use of sweeteners, the number of servings in packaged goods, the treatment of animals, and the impact on the environment in producing the products.
Trends in Recently Filed Class Actions
The following trends are emerging in class actions filed against food and beverage companies:
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More claims based on representations regarding ingredients (e.g., natural vanilla, pure honey)
- More claims based on origin of products (e.g. Italian olive oil, macadamia nuts made in
Hawaii , Australian beer, American Tabasco sauce) - More suits focused on the absence or presence of ingredients (e.g., citric acid as a favor or as a preservative where a "no preservative" claim is made on a label)
- More suits focused on sweeteners (e.g. excess sugar, characteristics of artificial sweeteners, presence of artificial sweeteners)
- More underfill claims for packaged and made-to-order products related to the number of servings
- More claims based on ancillary representations regarding the product (e.g. "sustainably farmed," or "humanely raised")
Developments in Recently-Filed Food and Beverage Class Actions
Plaintiffs continue to file class action complaints against food and beverage companies because plaintiffs lawyers perceive that they have settlement value. Class actions arising from consumer products can have classes with hundreds of thousands, or perhaps millions, of putative class members. Accordingly, even settlements that offer very small monetary relief to each member of the class may be largely based on the number of class members. These settlements can also include significant attorneys' fee awards. For example, a coffee maker recently paid
Claims regarding the presence, absence or source of vanilla continue to proliferate.2
New Theories Emerge: Sustainability and Animal Treatment
Capitalizing on consumer interest in sustainable environmental practices and animal welfare, class actions challenging label claims and marketing materials continue to be filed. The statements giving rise to the claims can arise from aspirational goals regarding the sustainability of the products, the ability to recycle the product packaging, and the treatment of animals or of the farming practices used in production.
Sourcing and sustainability claims made by food manufacturers continue to be a focus of the plaintiffs' bar. In Ehlers v.
The court concluded that plaintiff's allegations ignored the context of
Claims regarding the recyclability of packaging have survived motions to dismiss and have been certified as class actions.
What is a Food and Beverage Company To Do?
As the claims and theories pursued by lawyers on behalf of putative classes evolve, food and beverage companies would be well served to ensure that label statements and marketing claims can be supported. Keeping and maintaining records relating to the support for marketing claims can assist in having a disciplined approach to making sure that claims are substantiated and for explaining later the basis for the substantiation. In addition, maintaining records showing changes in labels and other advertising can also prove helpful.
A
In a recent case where the putative class alleged that
While plaintiffs' counsel pursuing claims against food and beverage companies continue to advance new claims and theories, courts are continuing to apply a reasonable consumer standard to assess the claims. Applying that standard, courts are sometimes willing to dismiss suits where the subjective expectations of an individual plaintiff are atypical.8 Likewise, claims are subject to dismissal where the claims are based on statements that are non-actionable "puffery."9 General, vague statements about a product's superiority, rather than a misdescription of a specific or absolute characteristic of the product, may lead to dismissal of the claim if the court finds it implausible that a reasonable consumer would view the label statement or marketing materials as a specific, verifiable claim. If a claim survives a motion to dismiss, establishing that the suit should not proceed as a class action becomes the next line of defense.
Footnotes
1. Suchanek v.
2. ee, e.g., Vizcarra v.
3. 2020
4. Smith v.
5. Smith v.
6. McGee v. S-L Snacks Nat'l, 982 F.3d 700 (9th Cir. 2020).
7. Iran v. Sioux Honey Ass'n Coop., 2020 U.S. Dist. LEXIS 124389 (
8. Cheslow v.
9. Silver v.
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Mr Robert J Guite
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