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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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the U.S. Senate is poised to impose such labeling nationwide. The proposed legislation is the result of a compromise of interests between Senate Agriculture Chairman Pat Roberts, R-Kansas, and ranking Democrat Debbie Stabenow of Michigan, and will need 60 votes to pass the Senate.

Nationwide GE Labeling Leaps Forward

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the

Nationwide GE Labeling Leaps Forward

On April 22, 2016, in Alaei v. Kraft Heinz Food Co. (“Heinz”), No. 3:15-cv-02961, Southern District of California Judge Michael M. Anello granted defendant Heinz’s motion to dismiss without prejudice plaintiff Suzanne Alaei’s “Made in the U.S.A.” false advertising claims.  The court held that plaintiff failed to plead facts with the particularity required for fraud-based claims under Federal Rule of Civil Procedure 9(b), and lacked standing regarding products she did not purchase.Background.  Plaintiff’s First Amended Complaint, filed on January 19, 2016, alleged that defendant’s “Made in the U.S.A.” advertisements violated California’s Unfair Competition Law (UCL) and the Consumer Legal Remedies Act (CLRA). Plaintiff alleged that she purchased a bottle of defendant’s Heinz 57 sauce that included the claim “MFD. In U.S.A.” on the product label, but that the sauce was made, or contained ingredients made, outside the United States. Plaintiff claimed that had she known this, she would not have purchased Heinz’s product.The “Who, What, When, Where, and How.”  The court began its analysis by noting that, under Rule 9(b), a fraud allegation must include the “who, what, when, where, and how” of the circumstances giving rise to a claim.  While plaintiff alleged the basic factual premise underlying her claims — that Heinz falsely labeled its products as “Made in the U.S.A.” even though certain ingredients used in its products were manufactured outside the United States — she offered little detail beyond this. Her complaint did not allege that the bottle of Heinz 57 sauce plaintiff purchased was manufactured outside the United States or contained any ingredients that originated outside of the United States. And, while plaintiff challenged the origin of certain ingredients, her complaint contained no allegations regarding where any of Heinz’s products or their ingredients were actually manufactured.No Standing For Products Not Purchased. Although plaintiff alleged that she purchased a single bottle of Heinz 57 sauce, she sought to represent a class of all Californians who purchased any Heinz product advertised as “Made in the U.S.A.,” but which was foreign-made or contained foreign-made ingredients. The court held that plaintiff lacked standing to make claims as to products she never purchased and whose advertising she did not see unless those products and alleged misrepresentations were “substantially similar” to those she bought.  Because plaintiff failed even to identify other offending products in her complaint, the court could not assess the similarity of such products to the product plaintiff purchased. The court held that plaintiff lacked standing to sue as to products she did not purchase and dismissed her class claims as to those products under Rule 12(b)(1).Takeaway. Alaei joins the list of California federal district court cases we have highlighted that reject plaintiffs’ false advertising or misbranding claims at the pleading stage for failure to meet Rule 9(b)’s particularity requirement. See, e.g., Davidson v. Kimberly-Clark Corp., No. C 14-1783 PJH (N.D. Cal. Dec. 19, 2014) (see our Kimberly-Clark post); Figy v. Frito-Lay N. Am., Inc., No. 13-3988-SC (N.D. Cal. Aug. 12, 2014) (see our Frito-Lay post). Alaei also supports the majority trend in the Ninth Circuit holding that plaintiffs lacks standing to challenge products they did not purchase unless they at least demonstrate substantial similarity to purchased products. See, e.g., Gallagher v. Chipotle Mexican Grill Inc., No. 15-cv-03952-HSG (N.D. Cal. Feb. 5, 2016); Maxwell v. Unilever United States Inc., No. 12-cv-01736-EJD (N.D. Cal. Aug. 28, 2014); Bruton v. Gerber Prods. Co., No. 12-cv-02412-LHK (N.D. Cal. Sept. 6, 2013) (see our Gerber post). These decisions are a win for companies fighting vague, conclusory allegations of false advertising that challenge a host of products.

The Devil’s in the Details: Court Dismisses “Made in the U.S.A.” Fraud Claims against Heinz Because Plaintiff Failed to Allege Specific Facts and Lacked Standing to Sue for Products She Did Not Purchase

On April 22, 2016, in Alaei v. Kraft Heinz Food Co. (“Heinz”), No. 3:15-cv-02961, Southern District of California Judge Michael M. Anello granted defendant Hein

The Devil’s in the Details: Court Dismisses “Made in the U.S.A.” Fraud Claims against Heinz Because Plaintiff Failed to Allege Specific Facts and Lacked Standing to Sue for Products She Did Not Purchase

On May 5, 2016, the Ninth Circuit affirmed a district court’s decision to dismiss, without leave to amend, a class action complaint alleging a violation of the Washington Consumer Protection Act against Costco for the deceptive labeling of its “VitaRain Tropical Mango Vitamin Enhanced Water Beverage” product, holding the plaintiff failed to demonstrate plausibility or causation.  Maple, et al. v. Costco Wholesale Corp., et al., Nos. 13-36089, 14-35038, 14-35059, 2016 WL 2621345.District Court Dismisses Claim that “VitaRain” Is Misleading.  In 2012, Harold Maple filed a class action lawsuit in the Eastern District of Washington against Costco and its bottler, Niagara Bottling, LLC, alleging a violation of the Washington Consumer Protection Act.  The complaint alleged that the name and labeling of Costco’s “VitaRain Tropical Mango Vitamin ‎Enhanced Water Beverage” misleads consumers into thinking the beverage contains only vitamins and natural water.  After two amendments, the district court dismissed the complaint without leave to amend, but without prejudice, because it “ha[d] not considered the merits of th[e] case.”Ninth Circuit Affirms Dismissal, but with Prejudice.  The plaintiff appealed the district court’s dismissal without leave to amend, and defendants cross-appealed challenging the decision to dismiss “without prejudice.”  In an unpublished opinion, the Ninth Circuit affirmed the district court’s holding that the complaint failed to state a claim, vacated the dismissal “without prejudice,” and remanded with instructions to re-enter the judgment “with prejudice.”“VitaRain” Is Not Misleading.  The Ninth Circuit concluded that the name “VitaRain” is not likely to mislead a reasonable consumer as a matter of law.  The court distinguished Ackerman v. Coca-Cola Co., No. CV-09-0395, 2010 WL 2925955 (E.D.N.Y. July 21, 2010) (unpublished) because the beverage at issue (Vitaminwater) contained the full names of two ingredients and the label contained misleading statements.  “Here, the term ‘Vita’ could mean many things, rain could not be an actual ingredient, and the label contains no misleading statements.”  Maple, 2016 WL 2621345, at *1.Plaintiff Cannot Establish Causation.  To the extent the plaintiff’s claim was based on certain ingredients labeled as “natural,” the Ninth Circuit held that such allegations failed because the plaintiff did not allege that he read those parts of the label.  He therefore could not have been deceived by any “natural” statements.  The court rejected plaintiff’s request to amend the complaint to allege a subclass of individuals who did read the label because plaintiff’s individual claims failed.  “The potential existence of other classes of which Plaintiff is not a member,” the court concluded, “is irrelevant.”  Id.“VitaRain” Takeaway.  Although it may be a challenge to obtain outright dismissal of “deception” claims on plausibility grounds, it is certainly not impossible.  Maple, along with the Ninth Circuit’s similar decision in <a href="http://classdismissed.mofo.com/consumer-products/implausibility-wins-the-day-ninth-circuit-affirms-dismissal-of-deception-claims-against-sugar-lip-balm/">Ebner v. Fresh</a>, demonstrates the limits of courts’ tolerance of “misbranding” claims when a label is not facially deceptive or false, and when there is no other indication that a consumer would be deceived.  Maple also demonstrates that a plaintiff cannot establish causation if he or she fails to allege having read challenged labeling statements.

A Tall Drink of Water: Ninth Circuit Affirms Dismissal of Costco VitaRain Class Action on Plausibility and Causation Grounds

On May 5, 2016, the Ninth Circuit affirmed a district court’s decision to dismiss, without leave to amend, a class action complaint alleging a violation of the 

A Tall Drink of Water: Ninth Circuit Affirms Dismissal of Costco VitaRain Class Action on Plausibility and Causation Grounds

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling (see our previous post <a href="http://classdismissed.mofo.com/food-misbranding/california-supreme-court-opens-the-door-to-organic-mislabeling-claims/">here</a>).  The announcement came as a surprise since FDA had previously declined requests from consumers, the food industry, and federal judges to define the term.  In another surprise move, on April 12, 2016, FTC announced that four companies advertising their personal care products as “all natural” or “100% natural” agreed to settle FTC charges that their ads were false and misleading because the products contained synthetic ingredients.<a href="#_ftn1" name="_ftnref1">[1]</a>The products included:<ul><li>ShiKia’s “All Natural Hand and Body Lotion” and “All Natural Moisturizing Gel,” which allegedly contain dimethicone, dthyhexyl glycerin, and/or phenoxyethanol;</li><li>Rocky Mountain Sunscreen’s “Natural Face Stick,” advertised as “all natural,” which allegedly contains dimethicone, polyethylene, and other synthetic ingredients;</li><li>EDEN BodyWorks’ “Coconut Shea All Natural Styling Elixir” and “Jojoba Monoi All Natural Shampoo,” which allegedly contain polyquaternium-37, phenoxyethanol, caprylyl glycol, and polyquaternium-7;</li><li>Beyond Coastal’s “Natural Sunscreen SPF 30,” advertised as “100% natural,” which allegedly which allegedly contains dimethicone; and</li><li>California Naturel, Inc.’s “all natural sunscreen,” which allegedly contains dimethicone.</li></ul>Under the proposed settlements, the companies may not make “all natural” or “100% natural” claims unless they have proper substantiation, i.e., competent and reliable evidence to substantiate any ingredient-related, environmental, or health claims they make.  FTC made it clear that the terms “all natural” or “100% natural” may only be used if there is nothing artificial or synthetic in the product.The FTC’s action is unexpected not only because FDA is currently addressing the use of the term “natural” on food labels, but because FDA does not have an informal policy regarding the use of “natural” on personal care products (as it has for food).  Given the absence of applicable regulations or policies, companies should take note of FTC’s action and its strict interpretation of “all natural” and “100% natural.”<a href="#_ftnref1" name="_ftn1">[1]</a> The FTC also issued a complaint against a fifth company for making similar “natural” representations.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling. The announcement came as a surprise 

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consideration of food labeling issues, such as those involving evaporated cane juice (ECJ), the term “natural” or the presence of partially hydrogenated oils (PHOs) in food products. But courts have also stayed cases pending the Ninth Circuit’s review of class certification decisions in misbranding cases, finding that appellate guidance will aid in courts’ consideration of these issues.Now, a mislabeling action against Bimbo Bakeries has been stayed on the latter ground:  Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-HSG (N.D. Cal. March 31, 2016) (Dkt. No. 161) (“Order”). Bimbo is at least the sixteenth Northern District decision to put mislabeling claims on hold pending the Ninth Circuit’s review.What’s on the Ninth Circuit’s Docket? In the upcoming year, the Ninth Circuit will review a number of the misbranding cases that have flooded this Circuit. The two key class action cases where district courts are awaiting guidance, however, are:  Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Nov. 24, 2014), which addresses the ascertainability requirement, and Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir. Dec. 18, 2014), which addresses the proper standard for damages models under Comcast Corp. v. Behrend. Brazil, which was dismissed on summary judgment, also raises issues regarding required proof of consumer deception as well as reliance and materiality requirements for claims sounding in fraud.<a href="#_ftn1" name="_ftnref1">[1]</a>Judge Puts Bimbo Bakeries Action on Hold. On March 25, 2016, Northern District of California Judge Haywood Gilliam issued an order to show cause why plaintiffs’ mislabeling action against Bimbo Bakeries should not be stayed pending resolution of these two appeals. In doing so, he noted that several courts in the District have stayed cases in light of the pending appeals in Jones and Brazil. The parties submitted a joint statement in response, indicating that neither opposed the stay.After analyzing factors courts use in considering stays, Judge Gilliam concluded that a stay was warranted. Because both parties agreed to the stay, neither would be harmed. Most importantly, “it would be an inefficient and imprudent use of judicial resources to rule on the pending motion for class certification when the Ninth Circuit may offer ‘substantial guidance, if not new law, that will materially impact the Court’s discussion in the instant case.’”  (Order at 2:10-14 (citation omitted).) The court accordingly stayed the entire action pending the Jones and Brazil appeals.“Food Court” Is Quiet. Bimbo and other district court stays of misbranding actions have caused the Northern District, previously dubbed the “food court,” to be relatively quiet on the false advertising front, at least for now. <a href="#_ftnref1" name="_ftn1">[1]</a> Both the Brazil and Jones appeals will be heard together along with another food misbranding class certification decision, Briseno v. ConAgra Foods, Inc., No. 15-55727.  Briseno also involves ascertainability and classwide damages issues.

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consi

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging and advertising claims touting the health benefits of its yogurt, finding that the plaintiff’s attempt to “manufacture” standing once again fell short.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 8, 2016).Background.  <a href="http://classdismissed.mofo.com/food-misbranding/stand-down-court-rejects-yakult-yogurt-false-advertising-class-for-lack-of-standing/">As we previously reported</a>, Central District of California Judge Cormac J. Carney denied plaintiff Nicolas Torrent’s original motion for class certification, ruling that plaintiff lacked Article III standing to seek injunctive relief because he failed to allege he would purchase Yakult yogurts again, and therefore could not show sufficient likelihood of future harm.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. Jan. 5, 2016).  On March 8, 2016, Judge Carney again rejected the plaintiff’s motion for class certification, ruling that his newly alleged intent to buy Yakult in the future was nothing more than a barely disguised attempt to manufacture standing.  Torrent v. Yakult U.S.A., Inc. Case No. 8:15-cv-00124-CJC-JCG (C.D. Cal. March 7, 2016).Takeaway.  Courts in the Ninth Circuit have reached inconsistent results regarding what a plaintiff must plead to demonstrate standing to sue for injunctive relief.  Some, like the Yakult court, have held that a plaintiff who does not intend to purchase the challenged product again cannot suffer future harm and, as a result, lacks standing to pursue injunctive relief.  See, e.g., Garrison v. Whole Foods Mkt. Grp., Inc., No. 13-CV-05222-VC, 2014 WL 2451290, at *5 (N.D. Cal. June 2, 2014).  Others have held that a misbranding plaintiff lacks standing because he or she cannot be duped by the same advertisement again.  See, e.g.,Rahman v. Mott’s LLP, No. CV 13-3482-SI, 2014 WL 5282106, at *9 (N.D. Cal. Oct. 15, 2014).  Some courts, however, have expressed the concern that false advertising might go unchallenged and have rejected both positions and sustained standing.  See, e.g., Henderson v. Gruma Corp., No. CV 10-04173-AHM-AJWX, 2011 WL 1362188, at *7 (C.D. Cal. Apr. 11, 2011).Courts are increasingly siding with Judge Carney in Yakult, finding that lack of intent to purchase precludes standing.  Judge Carney’s current decision confirms that a plaintiff cannot avoid this result by simply amending the complaint to allege that he or she intends to purchase the challenged product; standing to sue cannot be manufactured.

Class Cert Denial Redux: Plaintiff’s “Manufactured” Standing Falls Short in Yakult Yogurt Action

A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging a

Class Cert Denial Redux: Plaintiff’s “Manufactured” Standing Falls Short in Yakult Yogurt Action

There has been much recent discussion of the primary jurisdiction doctrine, as well as stay motions based on the doctrine, related to FDA’s review of its evaporated cane juice (ECJ) draft guidance. Now, in its recent memorandum disposition in Kane v. Chobani, LLC, No. 14-15670 (“Order”), the Ninth Circuit has entered the “primary jurisdiction” debate, coming down on the side of defendants seeking stays. But, given the panel’s limited analysis, the full import of Kane is unclear.Judge Koh Rejects Plaintiffs’ Alleged “Reliance” Below. The plaintiffs in Kane argued that that Chobani’s yogurt labelling was false and misleading because the yogurts contain ECJ and include “all natural” claims. After giving plaintiffs three chances to meet pleading requirements to show standing, Northern District of California Judge Lucy Koh ultimately held that plaintiffs failed to plead reliance necessary for standing with plausibility or particularity.Specifically, Judge Koh rejected plaintiffs “illegal product theory”—e.g. plaintiffs’ claim that they need not prove reliance for claims under the UCL’s “unlawful” prong. Like all courts that have confronted similar arguments, Judge Koh held that because plaintiffs’ entire complaint sounded in fraud, they therefore must allege reliance for all of their claims, and do so with particularity. Kane v. Chobani, Inc., 973 F. Supp. 2d 1120, 1131 (N.D. Cal. 2014).Judge Koh then found that plaintiffs failed to adequately plead reliance for either their ECJ or “all natural” claims. As for ECJ, Judge Koh found it implausible that plaintiffs did not know that ECJ was not a sweetener, as allegations in their complaint undermined their claims.  Id. at 1134. As for “all natural,” the court held that plaintiffs failed to provide sufficient allegations describing why challenged ingredients were not natural, as required to demonstrate they relied on the term and were deceived.  Id. at 1137. Because plaintiffs had tried—and failed—to meet these pleading requirements three times, Judge Koh concluded that amendment would be futile.  She accordingly dismissed the case with prejudice.  Id. at 1139.The Ninth Circuit Pivots to Primary Jurisdiction. The Ninth Circuit did not address the standing or reliance requirements in Kane.  Instead, its unpublished memorandum opinion focused solely on primary jurisdiction. Citing to its recent decision in Astiana v. Hain, the panel held that:The delineation of the scope and permissible usage of the terms ‘natural’ and ‘evaporated cane juice’ in connection with food products ‘implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.’Order at 2 (citations omitted). The panel noted that FDA is currently addressing both issues:  FDA issued a notice requesting comments regarding the term “natural” in November 2015, and confirmed in a letter to Northern District Court of California Judge Chen that it expected to finalize its ECJ guidance by the end of 2016. Id. at 3. Given FDA’s ongoing proceedings regarding these issues, the Ninth Circuit held that the primary jurisdiction applied. The panel vacated and remanded, instructing the district court to stay the action pending resolution of the FDA’s “natural” and “evaporated cane juice” proceedings.Unanswered Questions. The Ninth Circuit’s affirmation of primary jurisdiction is helpful. But it leaves many questions unanswered.  Is the “illegal product theory” a viable argument? Were plaintiffs’ bare bones allegations sufficient to plead reliance? Kane does not provide the definitive answers on these arguments. But more Ninth Circuit misbranding arguments are up ahead. Stay tuned.

Ninth Circuit Revives Chobani Yogurt Action, But Puts Claims on Ice and Leaves Questions Unanswered

There has been much recent discussion of the primary jurisdiction doctrine, as well as stay motions based on the doctrine, related to FDA’s review of its evapor

Ninth Circuit Revives Chobani Yogurt Action, But Puts Claims on Ice and Leaves Questions Unanswered

On February 16, 2016, U.S. District Judge Sam Sparks of the Western District of Texas dismissed a multidistrict litigation involving 11 putative class action lawsuits against various Whole Foods corporate entities and Skotidakis, Inc., a third-party manufacturer, based on an alleged misrepresentation regarding the sugar content in Whole Foods’ store-brand yogurt.  In re: Whole Foods Mkt., Inc., Greek Yogurt Mktg. and Sales Practices Litig., Case No. 1:14-mc-02588-SS.  The court granted defendants’ motion to dismiss after concluding that plaintiffs’ state law claims were expressly preempted because the sole evidence substantiating their claims did not comply with FDA testing methodology.Plaintiffs alleged that the yogurt’s nutrition label was false and misleading because it stated that the yogurt contained two grams of sugar per serving, but according to six tests conducted by Consumer Reports magazine, the yogurt actually contained 11.4 grams of sugar per serving.  Plaintiffs claimed that defendants intentionally mislabeled the product to charge a price premium and that plaintiffs would not have purchased the product had they known the truth about the sugar content.  On this basis, plaintiffs brought claims for violations of various state consumer protection and unfair competition statutes, breach of warranty, unjust enrichment, negligent misrepresentation, and requested declaratory and injunctive relief.The court granted defendants’ motion to dismiss, finding that plaintiffs’ state law claims were expressly preempted because the sole evidence substantiating their claims—the Consumer Reports testing—did not comply with FDA testing methodology, which requires a composite of 12 subsamples from 12 randomly selected shipping cases.  In what the court deemed a “far cry” from the FDA protocol, Consumer Reports analyzed only six samples from six different lots.  The court granted plaintiffs leave to amend and encouraged them to test products in a manner that complied with FDA protocol.

Testing 101: Court Dismisses Whole Foods’ Yogurt MDL over Failure to Comply With FDA Testing Requirements

On February 16, 2016, U.S. District Judge Sam Sparks of the Western District of Texas dismissed a multidistrict litigation involving 11 putative class action la

Testing 101: Court Dismisses Whole Foods’ Yogurt MDL over Failure to Comply With FDA Testing Requirements

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack fill provisions against Del Real LLC, a producer of Mexican heat-and-serve meat and poultry products.  Del Real LLC v. Kamala D. Harris et al., No. 13-16893.  The district court had issued a permanent injunction barring the AG’s enforcement on the basis that the claims were preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA).   Del Real LLC v. Kamala D. Harris, 966 F. Supp. 2d 1047 (E.D. Cal. 2013).The Ninth Circuit affirmed the preemption ruling, finding that California’s nonfunctional slack fill provisions are in “in addition to, or different than” the federal statutes’ general prohibitions against containers “filled as to be misleading.”  The court articulated two reasons why it would be impermissible to allow the California provisions to be applied to meat and poultry products: (1) the legislative history of the FMIA and PPIA shows a clear intent to create a uniform national labeling standard, counseling against allowing the states to develop variant standards; and (2) Congress intended to allow meat and poultry packaging to be subject to less specific regulation than other types of products.  The court reasoned that both of these intentions suggest it is unlikely that Congress intended for the states to be allowed to develop and apply more specific standards to slack fill for meat and poultry products.The court noted, however, that nothing in its decision should be read to prevent California from addressing misleading packaging of meat and poultry products in accordance with its concurrent authority under the FMIA and PPIA.

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack 

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

We’ve all heard about food fads:  Paleo, artisanal, farm-to-table.  But what about food litigation fads?  Plaintiffs’ lawyers must scour the same grocery aisles, judging from their past “sweet tooth” obsession with “evaporated cane juice” (ECJ).  But—with most courts in this District staying ECJ cases pending the U.S. Food and Drug Administration’s (FDA’s) review of its ECJ draft guidance—the ECJ litigation fad appeared to have faded as abruptly as it began.Not so fast, Plaintiffs’ lawyers will say.  While the majority of courts have maintained stays pending FDA’s final review, recent decisions to the contrary may portend the revival of this forgotten trend.  Will ECJ have another “moment”?We provide further background and discuss the implication of these decisions below.Plaintiffs’ ECJ Allegations. Plaintiffs bringing ECJ claims allege that ECJ is actually sugar, so listing ECJ as an ingredient misleads consumers into believing that these products are healthier than those listing sugar as an ingredient. Plaintiffs assert that FDA has explicitly stated that ECJ is not a common or usual name for sugar, and thus cannot be listed as an ingredient at all.FDA’s Position. Despite these assertions, FDA’s position on ECJ is in flux. Although FDA issued draft guidance in 2009 suggesting that ECJ is not the common or usual name for sugar, as we have previously posted, FDA subsequently issued a notice in 2014 reopening the comment period for its draft guidance, indicating that it would reconsider the issue.ECJ Stays. Following FDA’s notice, courts facing ECJ claims stayed or dismissed the claims pursuant to the primary jurisdiction doctrine, finding that, based on FDA’s authority over product labeling and its expertise in the area, courts should permit FDA to at least finalize its stance on ECJ before passing judgment. At least 18 ECJ claims were dismissed or stayed between 2014 and 2015.After issuing stays, one Northern District court judge who had stayed an ECJ case—Judge Chen—requested an update from FDA on the status of its review. In July 2015, FDA confirmed that it anticipated finalizing its guidance by the close of 2016. At least six Northern District courts continued stays since that update — all over plaintiffs’ objections. One court, however, departed from the trend: in August 2015, Judge Chhabria lifted a stay in an ECJ case.  See Gitson et al. v. Trader Joe’s Company, No. 3:13-cv-01333-VC (N.D. Cal. Aug. 18, 2015), Dkt. No. 123.Updates. Until recently, Judge Chhabria was the lone dissenter in the ECJ debate. But on January 4 and 5, 2016, Judges Henderson and Donato, respectively, also lifted ECJ stays. See Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57; Swearingen v. Pacific Foods of Oregon, Inc., No. 13-cv-04157 (N.D. Cal. Jan. 5, 2015), Dkt. No. 61. While neither decision contains substantial analysis, Judge Donato did note that he considered the issues “in light of the FDA’s continued delay in providing final guidance.” Id. at 1:18. These courts appear to have become impatient with the pace of FDA’s review.Two other courts, however, have continued stays subsequent to these three rulings. See, e.g., Gitson, et al. v. Clover-Stornetta Farms, Inc., Case No. 3:13-cv-01517-EDL (N.D. Cal. Jan. 7, 2016) (extending ECJ stay for an additional 180 days, until August 2016) (Laporte, J.); Swearingen v. Amazon Preservation Partners, Inc., Case No. 13-cv-04402-WHO (N.D. Cal. Jan. 11, 2016) (Orrick, J.) (extending ECJ stay and continuing case management conference until July 2016). The new year has thus brought divergence in Northern District courts’ treatment of ECJ cases.Implications. The future of ECJ claims is unclear: while Judges Orrick and Laporte’s decisions upholding stays suggest that the pendulum has not shifted towards reviving these claims, Judges Chhabria, Henderson, and Donato’s rulings to the contrary may suggest that ECJ stays will not remain in place indefinitely. This means that a slew of dormant ECJ claims could come back to life this year, especially if FDA fails to make headway on its draft guidance.  We may see a revival of the ECJ fad after all.But another trend may nonetheless keep these cases quiet. Many district courts have stayed misbranding cases pending the Ninth Circuit’s decisions in misbranding appeals, including Jones v. ConAgra, Brazil v. Dole, and Kosta v. Del Monte. These appeals concern class certification issues—including ascertainability and the proper measure of damages—that district courts must consider when assessing a plaintiff’s proposed class certification motion. Courts have therefore found it appropriate to wait for the Ninth Circuit’s guidance before deciding these issues. See, e.g., Ham v. Hain Celestial Grp., Inc., 3:14-cv-02044-WHO (N.D. Cal. Dec. 10, 2015), Dkt. No. 59. (staying putative class action pending Ninth Circuit appeals and collecting decisions in accord). ECJ cases are no exception. See Thomas v. Costco Wholesale Corp., No. 12-CV-02908-BLF, 2015 WL 6674696 (N.D. Cal. Nov. 2, 2015) (staying entire action based on Ninth Circuit appeals after staying ECJ claims in November 2014). Thus, even if FDA-based stays are lifted, Ninth Circuit stays may continue to keep ECJ claims at bay.

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Reviving a Forgotten Fad: Three Judges Lift Stays of Evaporated Cane Juice Claims

Reviving a Forgotten Fad: Three Judges Lift Stays of Evaporated Cane Juice Claims

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We’ve all heard about food fads:  Paleo, artisanal, farm-to-table.  But what about food litigation fads?  Plaintiffs’ lawyers must scour the same grocery aisles