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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 and Brandon Neuschafer

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

USDA Prevails at the D.C. Circuit

USDA Prevails at the D.C. Circuit

July 31, 2014

Authored by: Sara Ahmed and Brandon Neuschafer

Yesterday, a D.C. Circuit decision came down upholding the country of origin labeling requirements (“COOL”). COOL is the law that requires retailers licensed under the Perishable Agricultural Commodities Act to, among other things, label certain meat products with information regarding where the animal was born, raised, and slaughtered.

In yesterday’s ruling, the Court took an expansive approach to the Zauderer standard and held that, at least in the context of meat labeling, the government can compel commercial speech for reasons beyond preventing deception.

Included in those reasons the court cited to were: “the context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending country-of-origin labeling to food products; and the individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak.”

Dissenting Judge Janice Rogers Brown criticized that the ruling means “a business owner no longer has a

“Ascertainability” and food labeling class actions in the 9th Cir.

July 30, 2014

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Defendants often raise ascertainability when opposing class certification in food, beverage, and personal care products labeling litigation. District courts in the Ninth Circuit, however, sometimes reach different conclusions regarding a putative class representative’s burden when it comes to establishing ascertainability. Indeed, the subject has led to divergent decisions in the Northern District of California (often called “the food court”), with judges in that district commenting on the intra-district split. Two recent decisions, however, bolster defendants’ arguments that ascertainability in contested class certification proceedings (as opposed to settlement classes) is a significant hurdle for such plaintiffs to overcome.

Martin v. Pacific Parking Systems Inc., 2014 U.S. App. LEXIS 14200 (9th Cir. July 25, 2014), didn’t address consumer product labeling, but it addressed ascertainability. The Ninth Circuit affirmed the denial of class certification of claims under the Fair and Accurate Credit Reporting Act. While this is an unpublished decision and short on