SEATTLE (Legal Newsline) – Plaintiffs attorneys who target food and beverage companies with class action lawsuits are showing no signs of slowing down, according to analysis from international law firm Perkins Coie that also shows California’s lawyers are the most active.
Two members of the firm hosted a mid-year summary on food and beverage class actions on Aug. 2, presenting figures that show 2017 is on pace for a similar amount of filings as the previous two years. With 83 cases filed in the first seven months of the year, Perkins Coie projects 143 for the year.
That’s nearly identical to 2016 (145 lawsuits) and a little behind 2015 (158). In 2008, there were only 19.
“There’s been a return to California as the forum of preference for food and beverage class action lawsuits,” Perkins Coie’s Charles Sipos said during a one-hour webinar.
In fact, California courts have seen 47 food industry class actions in 2017, compared to only 12 by second-place New York.
It’s a larger gap than last year, when 65 were filed in California and 35 in New York.
Legal Newsline has reported on several of these cases, which boil down to a few separate types of claims.
There are lawsuits in which consumers claim they were misled into buying the product. Such was the case in Vicky Silva’s Oregon lawsuit that says she thought coconut-flavored sparkling water would contain coconut milk or water.
The company argued that a label on the product stated: “Contains no coconut.”
Similarly, lawsuits have been filed against the makers of ginger ale. Plaintiffs allege there is no ginger in the soda, despite being marketed as so.
Lawsuits alleging false or misleading claims make up the majority of cases filed since 2015. So far, 40 have been filed in 2017.
Nineteen lawsuits this year have alleged companies falsely use the phrase “all natural” to describe their products.
Defendants, like Utz and salad dressing maker Annie’s Homegrown, are facing these cases despite a lack of federal guidance on what makes a food “natural.” Plaintiffs and their lawyers say some products labeled that way actually contain non-natural, artificial and synthetic ingredients and preservatives.
“The (Food and Drug Administration) does have an informal policy, but that policy has not been given the weight of law,” Sipos said.
In fact, Sipos said Congress is tiring of the FDA’s delay, given that it was asked in November 2015 to define “natural.” More than 7,600 comments have been submitted to the FDA.
A pending appropriations bill would force the FDA to act. The agency would be required to report to Congress 60 days after the bill’s passage on the status of its rulemaking activity.
“It encourages the FDA to promulgate a regulation to have some sort of uniform, standard use for that term,” Sipos said, adding that it shows Congress prefers regulation to litigation to settle the issue.
In the meantime, judges have stayed some of these cases, but a couple of stays have been recently lifted.
Another main type of food and beverage class action concerns “slack fill,” the amount of empty space in packaging. Plaintiffs allege they are tricked by the size of the package and upset to find how much actual product is inside.
Muscle Milk received a favorable decision in New York federal court late last year, but that hasn’t stopped plaintiffs attorneys.
Among the products mentioned in these cases are Jolly Ranchers, Hot Tamales, Mike and Ikes, Whoppers, Ice Breakers, Reese’s Pieces and pepper.
Unlike the term “natural,” slack fill has an official definition from the FDA, but defendants argue it can be necessary and useful. Plus, labels show the products’ weight and how many servings are inside.
Fourteen of these cases have been filed in 2017, according to Perkins Coie. There were 37 last year and 30 in 2015.
Missouri is a jurisdiction to watch for these cases, Breena Roos said during the webinar. The state has recently drawn attention from legal reformers as a result of massive verdicts in talcum powder litigation in St. Louis.
“The reason why Missouri is targeted, in state court at least, is they’re considered a very plaintiff-friendly jurisdiction and it’s quite difficult to get a case dismissed early on,” Sipos added.
The state saw 14 food and beverage class actions last year, third-most in the country. This year, there have been six.
Still, California remains the king. If a plaintiffs attorney can’t get a nationwide class certified by a judge, it makes sense to focus on the laws of a state with a large population to create large statewide class.
The U.S. Court of Appeals for the Ninth Circuit, in San Francisco has given district courts leeway to determine if plaintiffs’ damages models are accurate enough when certifying a class, Sipos said.
Other favorable rulings make it harder for defendants to win their motions to dismiss, he added.
“Defendants would be well-served picking apart damages models and demonstrating that the models proffered might not have a tight enough relationship to putative class members or might not be reflective of actual market data,” Sipos said.
From Legal Newsline: Reach editor John O’Brien at jobrienwv@gmail.com.