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Food And Beverage Manufacturing Processes As The Bases For Consumer Class Action Claims

February 18, 2015

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Recent food labeling class actions suggest that plaintiffs’ counsel are broadening the scope of these types of claims. Of course, we are familiar with the more typical food labeling class actions, such as those challenging “all natural” labels or disputing whether a food product complies with federal law when noting it has “no added sugar.” Those traditional claims focus on the ingredients. The recent complaints mentioned in this article, however, suggest that class counsel may now focus on subjective statements regarding the processes used to make foods or beverages.

Social Responsibility Statements.

Jablonowski v. Chiquita Brands, Inc., No. 3:15-cv-00262 (S.D. Cal.), is a complaint filed by the well-known class action firm of Hagens Berman Sobol Shapiro LLP. It alleges that Chiquita falsely advertises on its website that it requires ecologically friendly farming practices. In “truth,” a Guatemalan company from which Chiquita buys hundreds of millions of pounds of bananas each

Problems Mount for Food Labeling Class Actions

December 17, 2014

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Problems Mount for Food Labeling Class Actions

December 17, 2014

Authored by: James Smith

The Ninth Circuit is poised to address the implicit “ascertainability” requirement for class actions in Jones v. ConAgra Foods, Inc., No 14-16327 (9th Cir.). Briefing is underway in that matter in which the district court denied class certification when it concluded that the class wasn’t ascertainable and that the plaintiffs’ proposed damages model wasn’t methodologically sound. I wrote about that district court ruling in a post on June 24, 2014.

The Jones appeal may provide some benefit to other defendants as a basis to stay other food labeling class actions. In Gustavson v. Mars, Inc., No. 13-cv-04537-LHK (N.D. Cal. Dec. 10, 2014), Judge Lucy Koh stayed proceedings pending a decision in Jones: “The appellant in Jones has briefed issues concerning ascertainability and damages that could be material to the Court’s disposition of any class certification motion in the instant action.” Judge Koh concluded that any decision

A significant summary judgment in food labeling class actions

December 11, 2014

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A significant summary judgment in food labeling class actions

December 11, 2014

Authored by: James Smith

In what seems likely to become a defining case on appeal, the Northern District of California (Judge Lucy Koh) granted summary judgment in a long-running food labeling class action. I’ve written several times about Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N. D. Cal.). That plaintiff alleges that many Dole products are misbranded because their labels say the products contain “All Natural Fruit.” Mr. Brazil contends this is false because the products contain ascorbic acid (commonly known as Vitamin C) and citric acid. Both of those ingredients, of course, are naturally occurring compounds found in citrus; many food manufacturers add them because of their natural preservative effects.

On December 8, 2014, Judge Koh granted summary judgment for the defendant, concluding “there is insufficient evidence that the ‘All Natural Fruit’ label statement on the challenged Dole products was likely to mislead reasonable consumers and that the

Why Rule 23(c)(4) doesn’t save food labeling class actions.

December 10, 2014

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Why Rule 23(c)(4) doesn’t save food labeling class actions.

December 10, 2014

Authored by: James Smith

In prior posts, I’ve written about the difficulties of establishing a feasible method of proving class-wide injury in food labeling class actions. Restitution is the only available remedy under the commonly-used California Unfair Competition Law, but plaintiffs can’t feasibly argue they’re entitled to a refund of the full purchase price. After all, the food they bought had some value—it satisfied hunger, provided nutrition, and presumably tasted good enough to eat. Instead, plaintiffs argue that they overpaid for the product because of the “false” labeling (e.g., “all natural”) and that they can calculate this overpayment, typically through a regression analysis. But a valid regression analysis is time-consuming, costly, and very difficult to construct—there simply are too many variables that may affect a product’s price other than whether its label said “all natural.” As a result, many courts are denying motions for class certification, finding that plaintiffs can’t establish the necessary elements

Feasible Damages Models Remain Elusive For Food Labeling Class Actions

November 11, 2014

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The latest development in the long-running case of Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N.D. Cal. Nov. 6, 2014), came when Judge Lucy Koh largely granted the defendant’s motion to decertify a class that she had just certified months earlier. In a blog posting on June 26, 2014, I discussed that earlier certification decision and noted several weaknesses in the plaintiff’s expert’s analysis. The defendant used those weaknesses (and others) to decertify the Rule 23(b)(3) class. And Brazil points to a problem with these class actions that many in the defense bar have been raising for quite some time—how can plaintiffs “prove” an injury from purchasing a low-cost product in a dynamic and competitive marketplace for food?

As with many food labeling cases, this plaintiff alleges that “all natural” statements on 10 Dole products are misleading. Those products contain ascorbic acid (i.e., vitamin C)

WTO Rules on Country of Origin Labeling

WTO Rules on Country of Origin Labeling

October 23, 2014

Authored by: Sara Ahmed

You may recall prior Digest posts regarding the World Trade Organization’s evaluation of the validity of the US Country of Origin Labeling (“COOL”) law.

On Monday, the WTO decided against the United States and has held that the COOL violates international fair trade rules. This is the third time the WTO has found COOL to be unfairly discriminatory and it is instigating Canada and Mexico to prepare to impose trade sanctions on US products such as wine and chocolate.

Consumer groups have also voiced their disappointment about the recent decision. Renee Hunt, a spokeswoman for the Ohio Ecological Food and Farming Association, an organic advocacy group, said: “It comes at the expense of consumers and American livestock farmers…Consumers want to have the choice of where their meat comes from, but, instead, Big Ag’s interests are protected.”  Chris Waldrop, policy director at

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