Digest

Bryan Cave Digest

ARCHIVE

Main Content

DEFEATING CLASS CERTIFICATION IN FOOD LABELING CLASS ACTIONS

April 14, 2014

Categories

DEFEATING CLASS CERTIFICATION IN FOOD LABELING CLASS ACTIONS

April 14, 2014

Authored by: James Smith

In postings in September 2013 and February 2014, I discussed tactics for opposing class certification in food labeling class actions. These tactics included relying on the Supreme Court’s opinion in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), to challenge the sufficiency of the plaintiffs’ damages model, which should be particularly difficult in these types of claims. In late March 2014, the Northern District of California decertified a food labeling class action largely based on those shortcomings.

In re POM Wonderful LLC Marketing & Sales Practices Litigation, 2014 U.S. Dist. LEXIS 40415 (N.D. Cal. Mar. 25, 2014), involves allegations that the defendant falsely advertised that certain of its juice products provide various health benefits and that substantial scientific research demonstrates those benefits.  The plaintiffs alleged familiar theories based largely on California consumer fraud statutes. The court had earlier certified the class, and the plaintiffs proposed two damages models from their

The Need For Actual Reliance For Food Labeling Claims Under The “Unlawful” Prong Of California’s UCL

April 3, 2014

Categories

The tide seems to be turning in favor of food labeling class action defendants with respect to the “unlawful” prong of California’s Unfair Competition Law.  The UCL provides consumers with a claim for “unlawful,” “unfair,” or “fraudulent” business practices.  Cal. Bus. & Prof. Code § 17200.  Since the California Supreme Court’s opinion in Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 246 P.2d 877 (2011), there has been no doubt that the UCL requires that a named plaintiff prove actual reliance on the challenged advertising when pursuing claims under the UCL’s unfair or fraudulent prongs.  A number of plaintiffs have argued, however, that they need not plead reliance when proceeding under the unlawful prong of the UCL.  Those plaintiffs contend that simply purchasing an “illegal” product that is misbranded in violation of California law is sufficient; thus, they need not prove that they relied on the alleged

Update: Appeals Court Favors COOL

April 3, 2014

Categories

Update: Appeals Court Favors COOL

April 3, 2014

Authored by: Sara Ahmed

You may recall that on January 9, 2014, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments regarding COOL, the law that requires retailers licensed under the Perishable Agricultural Commodities Act to label certain meat products with information regarding where the animal was born, raised, and slaughtered.

On March 28th, the federal appeals court affirmed the lower court’s denial of the American Meat Institute’s motion for preliminary injunction, an attempt to prevent the USDA from enforcing COOL.

In his ruling, Judge Stephen F. Williams wrote that COOL labeling “enables a consumer to apply patriotic or protectionist criteria in the choice of meat,” and “enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.” The court also noted that allowing the US a chance to comply with the WTO’s 2011

FDA Revises Guidance on Prior Notice of Imported Foods

April 2, 2014

Categories

On March 31, 2014, FDA opened a sixty-day comment period on revised draft guidance regarding prior notice of imported foods.  As its name suggests, the rule requires notice to FDA prior to importing any food into the United States.  Nearly every Q&A in the guidance document has been updated, and changes have been made to the information that must be provided in a prior notice.  For example, under the new guidance a prior notice will need to indicate whether the food has been refused entry by another country.

This guidance, now in its third edition, has not been updated since May 2004, meaning the impacts of the Food Safety Modernization Act had not been taken into account.  Comments on the draft guidance are currently due May 30, 2014.

The attorneys of Bryan Cave LLP make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.