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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

It’s Time to Renew Your Food Facility Registration!

Beginning on October 1, 2014, food facilities required to be registered with the FDA must renew their food facility registrations.  The FDA currently requires registration for all domestic and foreign food facilities that manufacture, process, pack, or hold food for human or animal consumption in the United States.  This food facility registration must be renewed every two years, and the current registration period lasts until December 31, 2014.  FDA has published a number of guidance documents to assist with the food facility registration requirements, including a Q&A document and a Small Business Compliance Guide.  More information on registration procedures can be found on FDA’s website.

Food and Beverage Class Actions Are on the Rise

September 19, 2014

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The latest Bryan Cave white paper on advertising class actions indicates an increase in class action filings affecting the food and beverage industry.  The paper, which analyzes class action complaint filings in the first two quarters of 2014, reveals the following:

  • Nearly 50% of the advertising class action complaints during the relevant time period were in the food and beverage (36%) or dietary supplement (12%) industries.  This number jumps to nearly 75% if other industries regulated by the Federal Food, Drug and Cosmetic Act are included. (Cosmetics accounted for 11%, pharmaceuticals for 8%, weight loss and pet care products for 4% each.)
  • Each quarter in 2014 represents a significant increase when compared to the last quarter of 2013.
  • Most of these food and beverage advertising class actions related to food labeling and nutrition content (26%), although “natural” claims still comprise a significant number of filings (18%).

The white