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Category Archives: Product Class Actions

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Reexamination of “Healthy” Continues with an FDA Public Meeting in March 2017

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Product Class Actions

As we’ve previously reported, FDA has signaled its interest in reviewing the scope and meaning of the nutrient content claim “healthy,” in part as result of a dispute with KIND LLC about label claims for its KIND Bar products. Then last fall FDA released a new guidance document on what constitutes a “healthy” food and proper labeling of… Continue Reading

False Labeling Lawsuits Get Hung Up On Faulty Damages Models

Posted in Advertising, Federal Regulations, Food and Beverage, Litigation, Product Class Actions

Some of our colleagues from Mintz Levin’s Class Action Practice, Joshua Briones, Crystal Lopez, and Grace Rosales, recently authored an interesting and timely article in the Bloomberg BNA Product Safety & Liability Reporter. The article examines certain defenses in consumer fraud class actions over product labeling – specifically, defenses based on faulty damages models. Beyond proving the… Continue Reading

Lawsuits Against The Honest Company Highlight Continued Risks of “All Natural” Labeling

Posted in Advertising, Litigation, Product Class Actions, State Consumer Protection Laws

Allegations are increasing against The Honest Company, Inc. for false and misleading marketing of its products as “all natural” and “plant-based” when they supposedly contain synthetic ingredients.  The Honest Company sells personal care, cleaning, and baby products in multiple channels including at retail, online and through consumer subscriptions.  The company was co-founded by the actress Jessica Alba… Continue Reading

Another California Dismissal of Proposed Class Action Regarding Disclosure of Forced Labor in the Supply Chain

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

We recently blogged about a new wave of class action litigation related to California’s Transparency in Supply Chains Act.  In December, Nestlé USA won the dismissal of a complaint against it alleging that the company was “obligated to inform consumers that some proportion of its cat food products may include seafood which was sourced from… Continue Reading

Federal Rule 68 Loophole; Not So Fast, My Friend.

Posted in Product Class Actions

As we recently blogged about, in January the U.S. Supreme Court rejected the Rule 68 ‘pick off’ strategy in its Campbell-Edwald decision.  The ‘pick off’ strategy’ occurs when defense counsel offers the plaintiff full relief through a Rule 68 offer of judgment.  If that offer is rejected, then the defense argues the fact that the… Continue Reading

Class Action Defense Pick-Off Strategy Shot Down by SCOTUS

Posted in Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Uncategorized

Our colleagues Michael Arnold and Gauri Punjabi recently discussed the U.S. Supreme Court’s rejection of the Federal Rule 68 “pick off” strategy on Mintz Levin’s Employment Matters Blog.  We previously blogged about this crafty strategy employed by class-action defense counsel back in November 2014.  Following the recent Campbell-Ewald Co. v. Gomez decision, defense counsel may… Continue Reading

Knockout in Round One: Court Dismisses California Supply Chains Act Class Action

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

The first round goes to the industry: on December 9, 2015, the Central District of California dismissed the complaint in Barber v. Nestle USA, a key bellwether case in a new wave of class action litigation related to California’s Transparency in Supply Chains Act. The Barber plaintiffs’ theory was that Nestle had violated California’s panoply… Continue Reading

Congress Passes 2016 Spending Bill with Significant Funding for Food Agencies

Posted in Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, U.S. Congress

The 2016 Omnibus Spending Bill recently passed by both houses of Congress ushers in important developments in the food safety, labeling, and nutrition spaces.  Following House and Senate votes December 18, it now goes to President Obama for his signature. The bill includes important provisions for the Food and Drug Administration (FDA) and Department of… Continue Reading

What Does GMA’s SmartLabel Initiative Mean for False Advertising Litigation?

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws

On December 2, 2015, the Grocery Manufacturers Association announced SmartLabel, a pioneering technology initiative that gives manufacturers and retailers an important new channel for disclosing information about their products directly to consumers. Through SmartLabel, simply by searching online or scanning the bar code on a product’s label, consumers can readily access a wealth of detail… Continue Reading

Settlement Looms for “Made in USA” Jeans Suit

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Litigation, Product Class Actions, State Consumer Protection Laws, State Regulations, State Unfair Competition Laws

A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution.  On November 30, 2015, the lead plaintiff in Paz v. AG Adriano Goldschmied, Inc. et al. asked the court for preliminary approval of a $4 million settlement between class members and defendants Nordstrom,… Continue Reading

When Transparency Is Not Enough: Class Action Litigation Under California’s Transparency in Supply Chains Act

Posted in Litigation, Product Class Actions, Prop 65, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

Passed in 2010, the California Transparency in Supply Chains Act has a worthy aim: requiring retailers and manufacturers doing big business in California to disclose what measures, if any, they are taking to ensure their suppliers comply with human rights standards. What started as a legislative effort to educate consumers and incentivize good corporate citizenship,… Continue Reading

U.S. House Passes GMO Labeling Legislation

Posted in Advertising, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

Today the Safe and Accurate Food Labeling Act of 2015 passed the House, in a vote of 275 to 150 (more information here). Still a hot-button issue, opposition to the Act is emotionally charged, with those opposed to the bill calling it the “DARK” Act (Denying Americans the Right to Know Act). Supporters of the… Continue Reading

The Patchwork Solidifies: GMO Bill Moves Forward in the House

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, U.S. Congress

The proposed Federal regulation of GMOs is proceeding. Following the White House’s recent action on GMOs, Representative Pompeo’s “Safe and Accurate Food Labeling Act” (H.R. 1599) was passed by the House Agriculture Committee on July 14. The Pompeo bill is an attempt to preempt a patchwork of state regulations on GMOs. More specifically, the legislation:

Hidden Costs of Common Beauty Treatments?

Posted in Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Litigation, Manufacturer Product Safety, Product Class Actions, Product Liability, Retailer Product Safety, State Consumer Protection Laws

The “toxic trio” is a foreboding name some associate with common and seemingly innocuous manicures and pedicures. Salon workers suffer higher-than-average rates of birth defects, miscarriages, cancers, and skin afflictions stemming from their daily use of nail products, many of which contain potentially harmful chemicals. A New York Times exposé on the health conditions affecting… Continue Reading

No Representation Without Substantiation? What POM Wonderful v. FTC Means for Consumer Class Actions

Posted in Advertising, Federal Trade Commission (FTC), Litigation, Product Class Actions, State Consumer Protection Laws

In this first post of a two-part series, we take a closer look at last Friday’s decision in POM Wonderful v. FTC by the U.S. Court of Appeals for the District of Columbia, which has meaningful implications for how companies advertise their products’ health benefits to consumers. The decision bolsters the Federal Trade Commission’s position that, when a company… Continue Reading

Jobs-ed: New Class Action Pulls Apple into California’s “Food Court”

Posted in Advertising, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws

In our continuing efforts to highlight litigation trends that affect consumer product companies, we often focus on class actions brought in California and, especially, its federal Northern District. The Northern District of California has come to be nicknamed the “Food Court,” and with good reason: the district is a high-traffic forum for class actions targeting the… Continue Reading

Class Action Defense Counsel adding ‘The Pick Off’ to Their Playbooks

Posted in Consumer Product Safety, Drugs & Cosmetics, Litigation, Product Class Actions, Retailer Product Safety, State Consumer Protection Laws, State Unfair Competition Laws

In recent years, we’ve noticed a new maneuver that class-action defense counsel have increasingly added to their playbooks: The Pick Off.  This is how the play is run: Offer the named plaintiff(s) full relief through a Rule 68 offer of judgment and, even if the plaintiff(s) reject the offer, argue that the fact that they were offered… Continue Reading

A Taste of Things to Come? Whole Foods Feels Sting of “Non-GMO” Litigation

Posted in Advertising, Consumer Product Safety, Food & Drug Administration (FDA), Food and Beverage, Litigation, Manufacturer Product Safety, Product Class Actions, Retailer Product Safety, State Consumer Protection Laws

As we’ve explored in past posts, mandatory GMO-labeling legislation has, at best, a spotty track record among state legislatures. Nevertheless, the GMO issue continues to draw the public’s attention, and it is becoming clear that the “Non-GMO” label now appeals to at least certain segments of the consumer base. Some companies in the food and beverage space… Continue Reading

The Incredible Shrinking Red Bull Refund: How Should Courts Verify Class Membership?

Posted in Consumer Product Safety, Food and Beverage, Litigation, Product Class Actions

A recent class action settlement has brought fresh attention to two age-old questions. The first: does Red Bull actually give you wings? The second: how carefully should courts screen out bogus claimants from proposed classes of refund-seeking consumers? Earlier this month, a federal court in Manhattan conditionally approved a settlement in two related class actions brought against… Continue Reading

Sugar and Spice and Cases on Ice: Evaporated Cane Juice Case Stayed Until FDA Issues Formal Guidelines

Posted in Advertising, Consumer Product Safety, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws

Last week, a California federal judge revived a putative class action accusing Amy’s Kitchen Inc. of misleading customers by labeling sugar as “evaporated cane juice” on its products.  In a finding that puts the case on hold until the FDA weighs in, Judge Illston found that a decision to permanently dismiss the case would be unjust… Continue Reading

Down the Rabbit Hole: Primary Jurisdiction Redux

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability, State Consumer Protection Laws

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’” While perhaps not as far down the rabbit hole as Alice was, the Courts within the Northern District of California are decidedly split on whether to use the… Continue Reading

The Reasonable Consumer’s Understanding of “All Natural” – Legal or Factual Issue?

Posted in Advertising, Consumer Product Safety, Federal Trade Commission (FTC), Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, State Unfair Competition Laws

Would “reasonable consumers” have regarded Paul Cezanne as highly had he painted numerous versions of still life with froot? In the ongoing California battle over lawsuits against food companies alleging false and misleading advertising, Plaintiffs claims are judged by the “reasonable consumer” test, in which plaintiffs must show that the public is likely to be… Continue Reading

More Courts Weigh In On The Controversy Of Using “All Natural” with GMOs

Posted in Consumer Product Safety, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws

A question before district courts these days seems to be whether 100% natural molasses move any slower than the FDA.  In July, the Food Court in the Northern District of California asked FDA to opine on the proper use and application of “whether and under what circumstances food products containing ingredients produced using bioengineered seed… Continue Reading

The GMO Controversy Continues to Swirl

Posted in Advertising, Drugs & Cosmetics, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

Some are concerned that the potential health consequence of the use of genetically modified organisms in food is unknown because of the lack of long-term testing proving that it is safe.  Fearful consumers imagine “Franken foods,” conjuring up images of over-sized ears of corn that shuffle about the fields, stiff-legged and neck-bolted. Several states have… Continue Reading