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Food litigation trends: From the future for 'natural,' to slack fill, Prop 65 and glyphosate residues

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By Elaine Watson+

06-Jun-2017

Food litigation update, Slack fill, Prop 65, glyphosate residues

The number of class action filings against food and beverage companies dipped from 158 in 2015 to 145 in 2016, largely due to a drop off in ‘natural’ lawsuits, but food manufacturers remain vulnerable to legal action on a host of other fronts, from slack fill to pesticide residues, says law firm Perkins Coie.

In an analysis  of 2016 filings, Perkins Coie noted that, “The number of filings aimed at food products or ingredients labeled as 'natural' or 'all natural' dropped significantly in 2016—by almost 50% from the 53 filed in 2015—but the category remained active.

“After a WHO report identified glyphosate as a potential carcinogen, plaintiffs began targeting the residual presence of glyphosate in foods. Plaintiffs have also begun to attack the ‘all natural’ label based on the supply chain of a product, alleging that it is misleading to represent that a product is ‘natural’ if it uses meat or dairy from cows given GMO feed.”

Where next for ‘natural’ lawsuits?

But why have natural lawsuits dropped down the agenda? Is it because the FDA’s probe into ‘natural’ claims –  which has prompted several judges to stay such cases on primary jurisdiction grounds until the FDA makes a decision – is making such cases less attractive to the plaintiff’s bar?

And can judges realistically keep issuing stays if months and even years pass and the FDA still doesn’t come out with a ruling on ‘natural’ (some lawyers predict the FDA’s probe could simply ‘die on the vine ’)?

According to Perkins Coie partner David Biderman, there's no reason why the stays can't go on for some time: "It is not unusual for the FDA to take some time to address matters but that does not mean cases should proceed," he told FoodNavigator-USA.

"Again, the need for national consistency and  informed FDA guidance outweigh is far more important and courts could likely be wasting time and resources focusing on an issue the FDA has agreed to address."

Source: Perkins Coie

A serious inquiry

As for whether the natural probe will simply fizzle out, he said: “I disagreeThis was a serious inquiry, the FDA recognized the issue was spawning litigation and even under the new administration, should address this."

While the FDA probe probably explains in part why fewer lawsuits have been filed over natural claims over the past year, the drop off could also reflect the fact that fewer companies are using natural claims, that they are using them more judiciously, and that there are simply other things to sue over these days that could bear more fruit , said Biderman.

"The term 'natural' has become an issue, and companies know—even if their products should be appropriately labelled natural - that they risk suits.  Also, plaintiffs’ counsel are bringing a host of other cases—as our update shows."

What’s on the radar of the plaintiff’s bar beyond natural claims?

So what other issues should food and beverage manufacturers keep on the radar when it comes to food litigation this year?

FALSE LABELING: Claims challenging representations such as ‘100% real cheese,’ ‘100% organic’ and ‘cold-pressed.’

SLACK FILL: The number of cases involving nonfunctional slack fill, alleging violations of 21 C.F.R. § 100.100 (a),  increased by 23% in 2016, and show no signs of abating in 2017.  

According to speakers at the recent ACI food law and regulation forum in Chicago, slack fill lawsuits have "become a real cottage industry," although there are concrete strategies companies can employ to reduce vulnerability, including stating the number of items in your pack, including clear sections of packaging, adding clear fill lines, including statements about contents settling in transit.

Speakers at the forum also noted that while the plaintiff's bar is filing slack fill cases, so are district attorneys, because the actions can be a significant source of revenue.

HEALTH MAINTENANCE: Filings relating to health misrepresentations (eg. over things such as ‘healthy’ claims on products considered high in added sugar) almost doubled in 2016.

Source: Perkins Coie

PROPOSITION 65: Prop 65 “continues to be a hotbed of activity,” says Perkins Coie. “Proposition 65 warning letters impacting the food and beverage industry have increased steadily over the last five years. In 2016, plaintiffs filed nearly 250 warning letters regarding food, beverages or spices—many of which identified multiple products and companies. Plaintiffs also continue to file notices relating to acrylamide (potato and sweet potato snack foods, vegetable chips, prune juice and olives), cadmium (seaweed, shellfish products and cocoa products) and arsenic.”

Manufacturers should also be aware that for online purchases, the product display page should include the warning language or a clearly marked hyperlink with the word WARNING that links to the relevant Prop 65 warning, it added.

Meanwhile, new regulations effective on August 30, 2018, require Prop 65 warning language to be tailored to the specific chemical. (eg  WARNING: Consuming this product can expose you to lead, which is known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov/food .)

CORPORATE SOCIAL RESPONSIBILITY:  Courts dismissed several lawsuits alleging claims of failure to disclose use of forced labor in the supply chain. Two such dismissals relating to pet foods, Wirth v. Mars Inc., No. SA CV 15-1470-DOC, 2016 WL 471234 (C.D. Cal. Feb. 5, 2016), and Barber v. Nestlé USA, Inc., 154 F. Supp. 3d 954 (C.D. Cal. 2015), are currently before the Ninth Circuit. 5 Perkins Coie LLP | March 2017.

Source: Perkins Coie

Who is the 'reasonable consumer'?

In 2016, the Ninth Circuit Court (Ebner v. Fresh, Inc., 838 F.3d 958) held that a ‘reasonable consumer’ is not quite as credulous as some plaintiff’s attorneys like to make out, and would not be deceived by an allegedly under-filled lipstick tube given that: (1) the tube accurately stated the amount of lipstick by weight in compliance with federal law, and (2) that any reasonable consumer knows that such containers aren’t completely full.

And this interpretation has already gained traction in the lower courts handling food-related cases, noted Perkins Coie. “In Bush v. Mondelez International, Inc., No. 16-cv-02460-RS… the Northern District of California applied Ebner to dismiss a slack-fill case involving travel-size snack products because it was not plausible that a reasonable consumer would be deceived by the slack-filled packaging where the package disclosed the net weight of product and the number of snacks per container on its packaging.”

Class certification and ascertainability

The federal circuit courts are divided on whether plaintiffs must establish an “administratively feasible” way of identifying class members, so it looks like the Supreme Court may get involved, so watch this space.

Further reading:

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