Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Water Is In, White Bread Is Out: “Healthy” Gets a New Look in 2023 | Class Dismissed

Lena Gankin

For decades, health-conscious consumers have argued about what it really means for a food to be “healthy.” Is dark chocolate “healthy”? How about breakfast cereal, coffee, or fruit gummies? At the same time, class action litigants have seized on ever-evolving and subjective definitions of “healthy,” pursuing claims against food manufacturers based on allegations that consumers were misled by a product’s marketing into believing that the product was more “healthy” than it really is.But as of this week, the U.S. Food and Drug Administration might finally have an answer to the age-old question of what “healthy” means. On September 28, 2022, the FDA released its new proposed criteria for when foods can be labelled “healthy.” Under the FDA’s new proposed definition, in order to make a “healthy” claim, a product must:<ul><li>Contain a certain meaningful amount of food from at least one of the food groups or subgroups (such as fruit, vegetable, dairy, etc.) recommended by the Dietary Guidelines.</li><li>Adhere to specific limits for certain nutrients, such as saturated fat, sodium, and added sugars. The threshold for the limits is based on a percent of the Daily Value (DV) for the nutrient and varies depending on the food and food group.</li></ul>The History of “Healthy”The FDA first defined “healthy” for label claims in 1994, and most recently <a href="https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-use-term-healthy-labeling-human-food-products" target="_blank">updated its guidance</a> in 2016, when the agency advised manufacturers that it would allow “healthy” labels on food products that contain at least ten percent of the Daily Value of potassium or vitamin D, or products that have a fat profile makeup of predominantly mono- and polyunsaturated fats.Under the FDA’s current definition, a food qualifies for the “healthy” label if it has limited amounts of certain fats, cholesterol, and sodium, and provides at least ten percent of the Daily Value of certain nutrients. Notably, there are no limits on added sugars.Digesting the New Proposed CriteriaThe FDA’s new criteria, announced this week, seeks to reduce added sugar consumption by limiting added sugar in products labeled “healthy” to generally no more than 2.5 grams per serving, but there are exceptions based on the exact category of food product.As part of the FDA’s <a href="https://www.federalregister.gov/documents/2022/09/29/2022-20975/food-labeling-nutrient-content-claims-definition-of-term-healthy" target="_blank">new proposed definition</a>, foods can be slotted into one of four categories: (1) raw whole fruits and vegetables; (2) individual food products (like plain yogurt or brown rice); (3) combination foods, like mixed products (like granola or yogurt with fruit chunks), main dish products (like frozen entrees intended to be eaten with sides to form a full meal), and meal products (like frozen dinners); and (4) plain water.Raw whole fruits and vegetables and plain water automatically qualify for the “healthy” label.The other categories are judged based on (1) meeting certain nutritional requirements and (2) if the product contains a certain amount of food from at least one of the food groups or subgroups (e.g., fruit, vegetables, grains, dairy, and protein foods) recommended by the 2020–2025 Dietary Guidelines for Americans.To understand the FDA’s new proposed criteria, it is important to understand that the FDA measures quantity in “food group equivalents” (FGE). One FGE is based on the FDA’s understanding of how much of that food group a healthy person should consume on a 2,000-calorie daily diet.Mixed Product Requirements“<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=23" target="_blank">Mixed products</a>” are food products that contain small amounts of multiple components. Imagine a trail mix with fruits and nuts, where there are not enough fruits in the package to equal a full FGE’s amount of fruit, and there are also not enough nuts to qualify as a full serving of nuts. Under the FDA’s new proposed rule, a mixed food is “healthy” if it contains at least half an FGE each of two different food groups. So the trail mix would qualify for the “healthy” label if it has half an FGE’s worth of nuts per serving (1/2 ounce-equivalent of nuts) and half an FGE’s worth of fruit per serving (1/4 cup-equivalent of fruit). The trail mix would not qualify as “healthy” if it had the same amount of nuts but a miniscule amount of fruit, because it would then be a mixed product with half an FGE’s worth of only one food group, not the required two.Main Dish and Complete Meal Product RequirementsUnder the FDA’s new proposed rule, “<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=25" target="_blank">Main dish products</a>” must contain at least one full FGE’s worth of two different food groups per labelled serving. For example, a vegetarian lasagna containing a ½ cup-equivalent of mixed vegetables per serving (one vegetable FGE) and ¾ ounce-equivalent of whole grains per serving (one whole-grain FGE) would qualify as “healthy.”Similarly, under the FDA’s new proposed rule, “<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=26" target="_blank">Complete meal products</a>” must contain at least one full FGE of three different food groups per labelled serving. A frozen salmon dinner would meet the “healthy” criteria if it contains at least one FGE each of salmon, green beans, and brown rice. That would be a large enough amount of three different food groups: seafood (protein food), vegetables, and whole grains.Combination foods have yet <a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=24" target="_blank">further complexities</a> under the FDA’s new proposed rule. For example, beans, peas, and lentils may be counted as either a protein or as a vegetable in a combination food.One Day You’re Healthy, the Next Day You’re NotUnder the FDA’s new proposed definition, some foods that currently qualify as “healthy” will no longer meet the criteria to use the label. These products include white bread, some yogurts, and cereals that exceed the FDA’s new limits on added sugar per serving.But other products that currently fail to qualify as “healthy” would qualify under the FDA’s new proposed definition. These products include avocados, nuts and seeds, higher-fat fish such as salmon, water, and certain oils (such as oil-based spreads or dressings). Water previously failed to qualify as healthy because it did not meet the existing nutrient-related criteria—another oversight that the FDA is seeking to close with this update.Recordkeeping RequirementsWhile the new contours of “healthy” will get all of the media (and potentially litigation) attention in coming months, the FDA’s proposed new definition of “healthy” comes with <a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=27">additional recordkeeping requirements</a> that are likely to be important to food manufacturers. Manufacturers that want to use the “healthy” label on their products may be required to keep records proving their products meet the FDA’s requirements. The FDA may require companies to maintain records such as recipes or formulations, batch records, or certificates of analysis from ingredient suppliers.Exact recordkeeping requirements depend on the type of food product, and if the ingredient statement on the product’s information panel makes it facially apparent that the product meets the “healthy” requirements. Manufacturers subject to the FDA’s new proposed definition would be required to keep records for a period of two years after rolling out the product, and would be required to make the records available to the FDA for examination or copying upon request.The Future of “Healthy”As part of its effort to improve the nation’s health, the FDA is also developing a front-of-package symbol indicating that a product meets the FDA’s “healthy” criteria. The FDA understands that consumers are busier than ever and wants to enable consumers to make healthy decisions more easily. The FDA is <a href="https://www.federalregister.gov/documents/2022/09/29/2022-20975/food-labeling-nutrient-content-claims-definition-of-term-healthy" target="_blank">accepting</a> public comment on its proposed rule for “healthy” labeling until December 28, 2022.Morrison & Foerster will continue to monitor the FDA’s rulemaking on “healthy” claims and is available to provide legal guidance to its clients on regulatory and class action litigation matters pertaining to the “healthy” label.