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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Partner

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

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

<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

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

A New Era of Climate Accountability: State Climate Superfund Laws Gain Momentum

APHIS Reinstates Legacy Biotechnology Regulations: Implications for CRISPR-Edited Plants

California Updates Prop 65 Short-Form Warning Requirements

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Are Prebiotic Drinks Plaintiffs’ Bar’s Next Target?Late last month, San Francisco resident Kirstin Cobbs initiated a class action lawsuit against poppi after purchasing its product, poppi prebiotic soda, believing the product to be “gut healthy.” Poppi sodas are packaged in cans with label designs making noteworthy statements such as the product is “for a healthy gut.” Additionally, the front of the packaging depicted in the complaint displays the slogan “Be Gut Happy. Be Gut Healthy.”The suit was filed in the Northern District of California under California’s False Advertising Law (FAL), California’s Consumers Legal Remedies Act (CLRA), California’s Unfair Competition Law (UCL), and unjust enrichment. The complaint alleges that the product is not “gut healthy” because consuming the soda in the amount normally ingested will not create meaningful prebiotic effects. Plaintiff concludes that if she had been aware of this, she would not have purchased the product. Cobbs alleges that by promoting poppi soda as a gut-friendly, prebiotic beverage, poppi is misleading consumers because “a consumer would need to drink more than four Poppi sodas in a day to realize any potential health benefits from its prebiotic fiber.” But poppi is likely targeted because it has “quickly climbed the ranks as one of the most popular beverages in the United States” since consumers are interested in alternatives to traditional sodas.Health Halo Litigation Continues with New TrendsPoppi prebiotic sodas are marketed as an alternative to traditional sodas, emphasizing the importance of gut health and prebiotic ingredients. Prebiotics support probiotics, which aid the immune system and digestion. A poppi soda contains two grams of dietary fiber, which appears to come from inulin. Sources suggest that inulin may stimulate the growth of healthy bacteria in the gut.There is an increasing uptick in lawsuits challenging claims that may imply health benefits to consumers. The complaint alleges that consumers search for healthier alternatives to soda, so it is not surprising that companies are trying to appeal to health-conscious consumers. It is similarly not surprising that the plaintiffs’ bar targets emerging trends, beginning with successful, popular products.These lawsuits have targeted products using terms such as “healthy,” “healthier,” “wholesome,” and “good for you.” The suits have faced mixed results, with some defeating false advertising challenges and others proceeding further into litigation. As we have written about <a href="/topics/241022-water-is-in-white-bread-is-out-healthy-gets-a-new-look-in-2023" target="_self">previously</a>, in 2023, FDA redefined its definition of “healthy.” Moreover, these recent lawsuits target terms which are not defined by FDA regulations. While FDA has regulated “healthy,” it does not regulate terms that may imply health benefits. Specifically, here, FDA has not defined “prebiotic,” nor does it regulate “good for your gut,” “gut healthy,” or “gut happy.”Key TakeawaysLike other food labeling false advertising cases, we expect early arguments over whether these terms are puffery and whether a reasonable consumer would be deceived by a term such as “gut healthy” to mean that they are receiving some nutritional benefit. If this case proceeds past the pleadings stage, we expect that the case may turn on whether the ingredients provide the gut health benefits that consumers expect to receive. Additionally, there may be a battle of the experts over whether two grams of inulin can provide health benefits.We will be tracking this litigation and we write this as an important reminder that companies should be sure to review all labeling on food and beverage products and consult with counsel as necessary to stay on top of current changes in litigation trends.Shannon Labuschagne, a Summer Associate in Morrison Foerster's San Francisco office, contributed to this blog post.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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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 mat

Claudia Vetesi

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

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Lauren N. Margolies is an associate in the Litigation Department of Morrison Foerster’s New York Office.

Lauren Margolies

Lauren N. Margolies

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High Court Orders Rethink Of $9.7M Award After TransUnion

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Are Prebiotic Drinks Plaintiffs’ Bar’s Next Target?
Late last month, San Francisco resident Kirstin Cobbs initiated a class action lawsuit against poppi after purchasing its product, poppi prebiotic soda, believing the product to be “gut healthy.” Poppi sodas are packaged in cans with label designs making noteworthy statements such as the product is “for a healthy gut.” Additionally, the front of the packaging depicted in the complaint displays the slogan “Be Gut Happy. Be Gut Healthy.”



Health Halo Trend Continues With poppi "Gut Healthy" Sodas

On April 15, 2024, in a big win for the continued validity of implied preemption, the Supreme Court declined to hear an appeal of the First Circuit’s preemption-based dismissal of a proposed misbranding class action. The plaintiff claimed that the label of a dietary supplement called “Lactaid” should be required to meet the heightened regulatory requirements for drug products. The defendant—and the district court and First Circuit—disagreed.Read the <a href="https://www.mofo.com/resources/insights/240430-implied-preemption-for-dietary-supplements" target="_blank">full client alert</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

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

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, autom

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Ashley E. Quinn is an associate in Morrison Foerster’s San Diego office.

Ashley E. Quinn

On April 15, 2024, in a big win for the continued validity of implied preemption, the Supreme Court declined to hear an appeal of the First Circuit’s preemption-based dismissal of a proposed misbranding class action. 

Implied Preemption for Dietary Supplements Is Here to Stay

Manufacturers and importers of Per- and Polyfluoroalkyl Substances (“PFAS”) must report information regarding all PFAS produced or imported since January 1, 2011, by either May 5, 2025, or November 10, 2025.The EPA recently finalized a rule requiring certain reporting and recordkeeping for PFAS under section 8(a)(7) of the federal Toxic Substances Control Act (“TSCA”). This rule requires any entity that manufactures or has manufactured PFAS or PFAS-containing articles in any year since January 1, 2011, to electronically report certain information to the EPA.Under TSCA, the term “manufacture” means to manufacture, produce, or import for commercial use. Thus, importers of PFAS or PFAS-containing articles are also required to report under this rule, but mere processors, distributors, users, and disposers of PFAS or PFAS-containing articles need not report. Companies should be aware, however, that this rule also covers incidental manufacturing and byproducts. If a company knows that it is manufacturing or has manufactured PFAS or PFAS-containing articles, or such information is reasonably ascertainable, it must report.There is no minimum volume or concentration exemption—any amount of PFAS known is reportable.Though the initial deadlines are over a year away, given the broad, retrospective reach of the rule, companies within scope of the rule should start preparing now for compliance. For many manufacturers and importers, complying with the rule will require the time-intensive task of gathering data from historical records.The rule requires companies to report, for each individual PFAS and for each individual year in which any PFAS was produced or imported since January 1, 2011, information including:<ul><li>The covered common or trade name, chemical identity, and molecular structure of each chemical substance or mixture;</li><li>Categories or proposed categories of use for each substance or mixture;</li><li>Total amount of each substance or mixture manufactured or processed, the amounts manufactured or processed for each category of use, and reasonable estimates of the respective proposed amounts;</li><li>Descriptions of byproducts resulting from the manufacture, processing, use, or disposal of each substance or mixture;</li><li>All existing information concerning the environmental and health effects of each substance or mixture;</li><li>The number of individuals exposed, and reasonable estimates on the number of individuals who will be exposed, to each substance or mixture in their places of work and the duration of their exposure; and</li><li>The manner or method of disposal of each substance or mixture, and any change in such manner or method.</li></ul>Most entities will have until May 8, 2025, to submit the required information, 18 months following the effective date of the final rule. Small manufacturers reporting exclusively as article importers will have until November 10, 2025, to submit the required information, 24 months following the effective date of the final rule. There is then a five-year record keeping period after submission to support future EPA activities informed by the data it receives pursuant to this rule.The EPA has non-exhaustively identified at least 1,462 PFAS covered under this rule, 770 of which are actively circulated in U.S. commerce.MoFo’s team of environmental attorneys regularly advises clients on compliance with TSCA and related regulations and are ready to assist companies that produce or import PFAS to comply with the EPA’s reporting and recordkeeping requirements.

Now is the Time for PFAS Manufacturers and Importers to Prepare for TSCA's Retrospective Reporting Requirements