Due to a recent decision in the Northern District of California, the U.S. Department of Agriculture (USDA) will be required to revise current electronic and text message disclosure options under its Bioengineered (BE) Food Labeling Rules, also known as the National Bioengineered Food Disclosure Standard (NBFDS or Standard). Plaintiffs successfully argued that these methods of disclosure did not meet Congress’s requirement that these methods be adequately accessible to consumers.Read More
By: Matthew G. Ball
Energy bar-maker Kind, LLC (“Kind”) has won a decisive victory in a multidistrict litigation matter pending in the Southern District of New York. In re Kind LLC “Healthy and All Natural Litigation”, No. 15-MD-2645 (NRB) (September 9, 2022) (“Order”). In the Kind Order, the district court made various rulings – of which the consumer class action defense bar should take note. Before the Court were Kind’s Motions for Summary Judgment, to exclude Plaintiffs’ experts, and to decertify the class. Kind ran the table, with the Court granting all three motions, and giving defense counsel a roadmap to victory in similar cases.Read More
By: Ketajh M. Brown
A recent ruling from the United States District Court for the Central District of Illinois served as an important reminder to the Plaintiffs Bar regarding a significant and continuing shift in judicial attitude toward speculative class action allegations of consumer fraud and breach of warranty. In this case, the Court’s order is a cautionary tale for those who make a living firing off indiscriminate legal claims without stopping to ensure all essential elements of their clients’ claims are sufficiently alleged.Read More
By: Amy Wong
Summary: Plaintiff filed a putative class action complaint in New York federal court against Mars Wrigley Confectionery US, LLC, alleging it deceived consumers into believing that its chocolate-coated ice cream bars contained only milk chocolate when they actually contain vegetable oils, which Plaintiff contends are not found in real chocolate. Plaintiff’s primary cause of action arises under New York’s false advertising and deceptive practices statutes, General Business Law §§ 349 and 350. Beers v. Mars Wrigley Confectionery US, LLC, No. 21-CV-2 (CS), 2022 WL 493555, at *2 (S.D.N.Y. Feb. 17, 2022).Read More
Summary: In a case alleging a failure to disclose the presence of toxic heavy metals in baby food, a California federal judge granted in part and denied in part a motion to dismiss. The judge found that plaintiffs have Article III standing and that their cause of action for failure to disclose is not preempted by Federal law.
Key Takeaways: In In re Plum Baby Food Litigation, plaintiffs allege that Plum PBC fails to disclose that its baby food products contain, or have a risk of containing, arsenic, cadmium, mercury and perchlorate. According to Plaintiffs, Plum uses deceptive, unfair and false labeling to obscure the potential presence of toxic metals in its baby food products and charge a price premium for what is labelled and advertised as high quality organic healthy baby food.Read More
By: Amy Wong
Summary: In 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) implemented the National Bioengineered Food Disclosure Standard (NBFDS). While some food companies have voluntarily complied with the NBFDS since 2018, the new regulations make compliance mandatory as of January 1, 2022.
Key Takeaway: The NBFDS is an extensive marketing standard with which every regulated entity should become familiar. While the USDA does not have authority to issue a recall or impose civil penalties for violations of the NBFDS, the AMS could initiate an investigation and publicly publish the findings of its investigation. It is also possible that States will adopt the same or similar requirements and impose remedies for violations of their standards, such as damages, penalties, injunctive relief, and attorney’s fees.Read More