Alston & Bird’s Food & Beverage Digest | December 2022

FOOD D I G E S T D E C E M B E R 2 0 2 2 BEVERAGE % reading value Edition Facts 3 Sections This Edition Cases Per Section 1-14 Reading Calories 0 New Lawsuits Filed 100% Motions To Dismiss 100% Regulatory 100%

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 3 The Food & Beverage Digest’s Toasts to 2022 I used to know a clever toast, but pshaw! I cannot think of it—so fill your glass to anything and, bless your souls, I’ll drink to it! – Wallace Irwin We get it, year-in-review lists are all the rage these days, and everyone has had their share of year-end cycling badges and curated playlists. For all our attempts to resist the urge, we could not help ourselves in piling on the “fun.”And for that, we hope you can forgive us—or at least humor us—for curating three of the biggest Food & Beverage highlights from the past year. Whether it’s something to raise a toast to—or something to pop off on—2022 has something to offer to everyone: Proposed “Healthy” Definition For last year’s words belong to last year’s language And next year’s words await another voice. – T. S. Eliot Although Eliot probably did not have implied health claims in mind when he wrote “Little Gidding,” the poem still speaks to a very real concern food and beverage companies should have on their New Year’s resolutions for 2023. Earlier in the fall, the Food and Drug Administration (FDA) issued a proposed rule broadening its regulatory definition of the term “healthy” to sweep in “any material stating or implying that the nutrient content of the food would be helpful to consumers in structuring a diet that is supported by current dietary recommendations.” Writing on the proposed rulemaking, two of our Digest contributors (Angela Spivey and Sam Jockel) predicted that the FDA’s proposed rule will expose a much broader array of food labeling to both FDA regulatory scrutiny and potential litigation risk and that food and beverage companies should prioritize evaluating their product labels for both compliance with these potential requirements and heightened litigation risk. New Theories of Liability: PFAS and Greenwashing Claims Ring out the old, ring in the new, … Ring out the false, ring in the true. – Alfred, Lord Tennyson False labeling cases are a mainstay of the plaintiffs’ bar, but even now it will test new false labeling allegations to parallel consumer demand. 2022 rang in two new categories of false labeling putative class actions as consumer demand increased for product safety and environmental, social, and governance claims. First, the plaintiffs’ bar increasingly is challenging food and beverage products for purportedly containing additional substances that potentially may harm human health (like PFAS and heavy metals). In doing so, however, the plaintiffs’ bar has sidestepped product liability altogether and instead is pushing false labeling and price premium theories. Second, the plaintiffs’ bar also has set its sights on what it describes as “greenwashing,” challenging anything from recyclability claims to aspirational mission statements about environmental and social responsibility. For both of these kinds of suits, though, questions remain whether the plaintiffs can point to a deceptive claim. 2023 may decide whether these plaintiffs can “ring out the false” and “ring in the true.” Sheehan & Associates, P.C. Everything in moderation, including moderation. – Oscar Wilde Love them, hate them, or even admire them, no one can deny that Spencer Sheehan and his firm Sheehan & Associates, P.C. are the most prolific consumer class action filers in recent years. In 2019, Sheehan established himself as a vanilla crusader (check out here and here), but since then he has broadened his focus to include not only all sorts of flavoring and ingredients claims (fish food, “wheat” crackers, mayonnaise, jalapeño popper cheese curls) but also trading cards, coolers, nonfungible tokens, and even hockey jerseys. This much, at least, is certain: moderation is not in Mr. Sheehan’s dictionary. In 2022 alone, Sheehan & Associates has appeared in over 150 new putative class actions. While we wonder if Mr. Sheehan may try to pioneer litigation in the multiverse, we would be remiss in not taking a moment to lift a toast to Mr. Sheehan for always providing content for our readers (other fan favorites can be found here, here, and here).

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 5 New Lawsuits Filed Be of Good Cheer! Vanilla Claims Come to Call Cappalli v. Danone North America Public Benefit Corporation, No. 2:22-cv-00716 (M.D. Fla. Nov. 16, 2022). Long-time readers of this Digest recall tales of the (alleged) glories of Christmases long, long ago, when these virtual pages were filled with lawsuits challenging vanilla-flavored products and other flavor/ingredient claims. While the plaintiffs’ bar has undoubtedly expanded its repertoire over the past few years, it still thinks it’s the most wonderful time of the year to bring back the classics. A recent complaint filed in Florida federal court alleges that the defendant’s Silk-branded Vanilla Almondmilk is deceptively labeled. In a nutshell, the complaint claims that while the front label of the carton may read “Vanilla,” vanilla is not “an ingredient that independently creates the Product’s vanilla taste.”Rather, the product’s flavor comes from “Natural Flavor,” which is only identified in small print on the ingredients list on the backside of the product. As with many vanilla cases of yore, this plaintiff claims the defendant’s labels are misleading because “reasonable” consumers believe—presumably in addition to a certain jolly old elf— that without any additional qualifiers that it is “flavored,” the vanilla almond milk actually contains its characterizing flavor as an ingredient. Because the Silk Vanilla Almondmilk allegedly does not indicate to consumers that it was merely vanilla “flavored” rather than comprised of “real”vanilla ingredients, the complaint claims that reasonable consumers paid a price premium for the product. The plaintiff seeks to represent a class of similarly situated Floridians in asserting claims under Florida’s consumer protection statute and for unjust enrichment. Capri Diem: Will Consumer Seize the Day in PFAS Clash? Toribio v. The Kraft Heinz Co., No. 1:22-cv-06639 (N.D. Ill. Nov. 29, 2022). A less-than-sunny consumer has taken exception to Capri Sun, the fruity drink pouch and favorite of all YMCA soccer teams. The consumer does not, however, seek to revisit the longsettled debate about whether Capri Suns are best enjoyed upside down. Instead, she claims that consumers should think twice before serving Capri Suns with that orange slice. As alleged in the complaint filed in Illinois federal court, the maker of Capri Suns falsely markets the drink pouches as “a healthy choice for kids” and falsely labels them as “always made with all natural ingredients.”These claims, alleges the complaint, are false because socalled“independent third-party testing”detected“material” levels of per- and polyfluoroalkyl substances (PFAS) in the products. PFAS encompasses a broad category of over 9,000 unique compounds, each of which (at least as the complaint is concerned) poses a risk to human health, even at trace levels. Accordingly, the complaint alleges that Capri Suns are “worthless or less valuable.” The consumer seeks to certify both nationwide and New York classes for claims for breach of warranty, violations of New York consumer protection laws, fraud, and unjust enrichment. Impasta! Ramirez v. Kraft Heinz Foods Co., No. 1:22-cv-23782 (S.D. Fla. Nov. 18, 2022). It’s not an exaggeration to say this might be the cheesiest complaint we’ve seen yet. And that’s saying something considering Sheehan and Associates, P.C., has filed more cheesy complaints than you could shake a smoke-flavored cheese stick at. Sheehan’s latest cheesecapade lands in the Southern District of Florida, where he seeks to vindicate the rights of the silent majority—those who need their macaroni and cheese and need it now. The complaint takes aim at the defendant’s Velveeta brand of microwaveable shells and cheese, which includes a front-of-pack claim that it is “ready in 3 ½ minutes.” But according to the complaint, that would be impasta-ble given that the directions outlined on the back of the packaging include four separate steps, including one that requires the product to be cooked in the microwave for 3 ½ minutes. The Floridian plaintiff claims that because of the allegedlymisleading representation that the product would actually be ready for consumption within 3 ½ minutes, she overpaid for the quick-cooking pasta. She thus seeks to represent both a Florida class and a multi-state class of consumers who apparently “seek to stretch their money as far as possible when buying groceries” and would not have purchased the quick-cooking cheesy shells had they known they would have also had to remove the lid, add water, and stir in the contents of the cheese sauce pouch before being able to enjoy their cheesy goodness. Based on this grievous injustice, the complaint alleges violations of Florida’s and other states’ consumer protection statutes, false advertising, breach of warranty, negligent misrepresentation, fraud, and unjust enrichment. Spreadable “All Fruit” Product in a Jam Indiviglio v. B&G Foods, Inc., No. 7:22-cv-09545 (S.D.N.Y. Nov. 8, 2022). A plaintiff went “all in” with a lawsuit filed in New York federal court, alleging that the defendant’s cherry-flavored “spreadable fruit” product is false and misleading. Skipping altogether the category “spreadable fruit”—which to one of our contributors sounds almost as appetizing as fruit cake this holiday season—the plaintiff instead challenged the “All Fruit” claim on the product label. First, the consumer alleged, the “All Fruit” claim is false because the “spreadable fruit” does not contain just “All Fruit,” but instead contains additional ingredients like citric acid

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 7 and “natural flavor.” Second, the consumer alleged that the “Sweetened Only with Fruit Juice” simply furthers consumers’ expectations that the product contains “All Fruit.” Allow the plaintiff to demonstrate with a rhetorical question, which presumably she believes reasonable consumers would ask while strolling down the grocery aisle: “if they can use fruit for sweetening, surely they will have other ways to use fruit ingredients so that ‘All Fruit’ is true.” If not convinced, are you at least entertained? Surely. The Man with No Chill Thomas v. The Procter & Gamble Co., No. 1:22-cv-00914 (W.D.N.Y. Nov. 26, 2022). Come for the chill, but don’t stay for the lemon! At least that’s what one sour plaintiff claims as part of a recent class action complaint challenging the defendant’s Vicks VapoCOOL line of “Honey Lemon Chill”-flavored cough drops. Represented by none other than Mr. No-chill himself, Spencer Sheehan, the plaintiff alleges not one but two false advertising claims based on the product’s labeling. First, the complaint targets the description of the flavor of the product. While the plaintiff recognizes that “Chill” refers to menthol (the active ingredient in the product) and the lozenges are in fact made with honey, absent from the ingredients list is any mention of lemon. The complaint therefore claims that the inclusion of a lemon wedge on the products packaging, along with “Lemon” in the description of the flavor, leads consumers to believe that the immune-boosting citrus is an ingredient in the product. The second claim, which conspicuously lacks a citation to law, is based on the fact that the product claims to “Soothe[] sore throats” but does not contain any demulcent ingredients— specific ingredients suchas elmbark andpectin that havebeenapprovedby theFDAas agents that soothe and relieve irritation of inflamed surfaces. Though the complaint recognizes that the lozenges’ corn syrup and sucrose ingredients “can function as demulcents,” Sheehan boldly claims that the label should identify the product as an “Oral anesthetic formulated in a soothing sugar base” because that “statement would tell consumers [more] about the Product.” Seeking to represent both a New York and multi-state consumer class, the plaintiff alleges violations of state consumer protection laws, breach of warranty, fraud, and unjust enrichment. Not So Chuffed About Chocolate Truffles James v. Chocmod USA, Inc., No. 1:22-cv-01435 (E.D. Cal. Nov. 7, 2022). A California plaintiff decided that she is not one to be truffled with. In a putative class action filed in California district court, the plaintiff alleges that shewasmisled by a label for chocolate truffles entitled“Truffettes de France.”According to the plaintiff, based on this representation, she believed that the chocolate concoctions were made in and imported from France, when, quelle horreur, they are purportedly Canadienne. The plaintiff contends that she would not have purchased the truffles had she known their origins were North American. But, wanting to have her truffle and eat it too, the plaintiff also contends that she is entitled to injunctive relief because she cannot determine whether the truffles are made in France, and the “doubt in her mind” as to whether it is possible that the truffles might someday be made in France constitutes an ongoing injury. Coupled with her request for injunctive relief, the plaintiff also brings claims for violations of California consumer protection laws, as well as for breach of express and implied warranty and unjust enrichment. She seeks to represent a nationwide class, a California class, and a subclass of California consumers who purchased the truffles for personal use. Crunchy Consumers Claim Their Granola Isn’t So “Simple” Campobasso v. The Quaker Oats Co., No. 1:22-cv-06043 (N.D. Ill. Nov. 2, 2022). Several granola-loving plaintiffs filed suit in Illinois federal court, taking aim at two of the defendant’s granola products, “Simply Granola–Oats, Honey & Almonds” and “Simply Granola–Oats, Honey, Raisins, & Almonds.” The plaintiffs claim that using the word “Simply” in the products’ names coupled with the front packaging’s callout of select ingredients with images of those ingredients misleads consumers to believe that the products contain only those ingredients pictured and mentioned on the front label. Interestingly, the term “ingredients list”appears nowhere in the 34-page complaint; instead, the plaintiffs claim that they did not see any other ingredients listed or depicted on the front label and, thus, believed that the granola products “contained–simply–only those” select ingredients. But as part of their complaint, the plaintiffs do recognize that the products contain ingredients besides the ones pictured on the front packaging—ingredients like sugar, honey, and wheat sugar, to name a few. Still, the crunchy plaintiffs gripe that the “Simply Granola” products are not “simple” and that the use of the word “Simply” in the products’ names and in their marketing deceives consumers into believing the products are “clean eating”with very few ingredients. The plaintiffs all claim they would not have purchased the products or would not have paid as much for them if they had known the truth. The plaintiffs seek to represent classes of Illinois, New York, California, Iowa, and Arkansas residents, and they assert claims for violation of state consumer protection laws, breach of warranty (for New York and California classes), and unjust enrichment. Plaintiffs’ Preservative-Free Plight Sinatro v. Welch Foods, Inc., No. 3:22-cv-07028 (N.D. Cal. Nov. 9, 2022). Gone are the days of children enjoying a preservative-free fruit snack, cry a group of plaintiffs, in a federal class action. These California-based plaintiffs attack the defendants’ beloved fruit-snack gummies for stating “No Preservatives” on their front labels, despite allegedly containing two preservatives—citric and lactic acid. Lamenting this tragedy, the plaintiffs

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 9 home in on the products’ alleged target audience for these fruit snacks—parents (and by proxy, children). The whopping 98-page complaint details the defendant’s marketing efforts on all social media platforms, highlightingwhat the plaintiffs argue is the defendant’s attempt to capitalize on American parents wanting to give their kids something “preservative-free” to snack on. The plaintiffs bring suit on behalf of a national class and a California subclass of consumers who purchased the products, seeking injunctive relief and damages for their harm. The plaintiffs assert claims for violation of California’s consumer protection laws, fraud, intentional misrepresentation, breach of warranty, and unjust enrichment/restitution. Indiana Popcorn: The Great Mystery Gibson v. Eagle Family Foods Group LLC, No. 1:22-cv-02147 (S.D. Ind. Nov. 4, 2022). Pray tell, Dear Reader, do you also prefer popcorn popped and grown from the bounding hills and esteemed terrain of Indiana due to the “unique characteristics of popcorn made there”? One Indiana-consumer certainly does. But, while on her quest for an “authentic snack,” she alleges she was hoodwinked by the defendant’s popcorn, sold under the “Popcorn Indiana” brand, because the product’s labeling falsely suggests to consumers that the corn in the product is both grown and popped in Indiana. Represented by none other than Sheehan and Associates, P.C., the plaintiff laments that consumers everywhere are “seek[ing] brands that are genuine” such as “whisky from Scotland, sake from Japan,”“tomatoes from Italy,” and–of course–popcorn from Indiana! On the plaintiff’s behalf, Sheehan argues in the complaint that the defendant’s popcorn is grown, but not popped, in the great state of Indiana–a locale that allegedly delivers “unique characteristics” for popcorn made there “from start to finish.” Despite claiming that the defendant’s product is not as authentic as advertised because it is not grown and popped in Indiana, the complaint ends in a cliffhanger, failing to identify just what exactly are those “unique characteristics” of popcorn that is popped in the Hoosier State. The plaintiff seeks to represent Indiana and multi-state classes of purchasers and asserts claims for violations of state consumer protection laws, breaches of warranty, negligent misrepresentation, fraud, and unjust enrichment. Consumer Looks to Roast “100% Arabica Coffee” Claims Brownell v. Starbucks Coffee Co., No. 5:22-cv-01199 (N.D.N.Y. Nov. 13, 2022). A half-caff complaint inNewYork federal court looks to roast front label claims by a prominent coffee supplier that one of its varietals contains ground 100% Arabica coffee. As with most lawsuits coming out of the infamous law offices of Sheehan and Associates, P.C., before getting into the crux of the complaint, readers are first“treated”to a historical overview of the coffee bean, coffee acids, and the average consumption trends of American coffee drinkers. One of Sheehan’s fun tidbits is that “[a] normal cup of coffee contains about 116 milligrams of potassium,” which is added to adjust the pH of coffee and neutralize naturally occurring acids without alternating the coffee beans’ flavor or aroma. According to “[r]ecent reports,” however, the defendant’s coffee“has significantly greater than expected levels of potassium.” What are those levels, you might ask? Unfortunately, the complaint leaves us staring at an empty cup there. But not to worry! “According those knowledgeable,” the purportedly high levels are “likely intentional,” resulting in consumers allegedly being misled by the product’s claim that it is “100% Arabica Coffee.” The plaintiff claims she read and relied on the front-of-pack claim to believe the contents included only ground coffee and not any additives. On that basis, she seeks to represent a NewYork class of consumers, as well as a consumer fraud multi-state class, and asserts claims for violations of various state consumer protection laws, breaches of warranty, fraud, and unjust enrichment. We’ll continue to follow along to see if this complaint puts a bitter taste in the court’s mouth. Faux Naturale! Tatum v. The Kraft Heinz Co., No. 3:22-cv-07180 (N.D. Cal. Nov. 15, 2022). Sacré bleu! A California-based plaintiff seeking an au naturale drink mix brought suit against the manufacturers of the “Crystal Light” brand drink mixes, alleging that the defendants falsely label at least 17 mixes in the product line as if they are exclusively naturally flavored. The plaintiff takes issue with the products’ front-of-package labels that allegedly state that the drink mixes are flavored with“Natural Flavors”or “Natural flavor with other natural flavor” alongside names and imagery of fruits and berries. According to the complaint, the drink mixes contain dl-malic acid, a synthetic petrochemical added to enhance flavoring, yet fail to disclose the presence of artificial flavoring ingredients on the products’ front labels. Curiously, the complaint states that the products do disclose the presence of “malic acid” on their respective ingredients lists as the first or second item. Interesant! In addition to the false labeling claims, the plaintiff also alleges that the defendants’ labeling violates the Federal Food, Drug, and Cosmetic Act’s own labeling requirements. The plaintiff seeks to represent a California and nationwide class of purchasers and asserts claims for violations of California, Illinois, and Pennsylvania’s consumer protection statutes, breaches of warranty, negligent misrepresentation, and fraud (by omission). Avocado Lovers Take a Stand Redmond v. Upfield US Inc., No. 1:22-cv-06334 (N.D. Ill. Nov. 14, 2022). A plaintiff’s avocado dream turned nightmare (allegedly) in this putative class action out of Illinois federal court. An avocado-loving plaintiff alleges that the defendant markets, labels, and sells its Country Crock brand vegetable oil spread as being “Made with Avocado Oil,” when, according to the complaint (and to our avocado lover’s chagrin), avocado oil is the least prevalent among the product’s “Blend of Plant-Based Oils” (following palm fruit, palm kernel, and canola oil). According to the complaint, “[a]vocado oil is valued for its versatility,

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 1 1 taste, and nutritional value,” in addition to its high smoke point, which makes it useful in cooking, and “its nutty and grassy taste.” But the oil at issue purportedly only contained a de minimis amount of avocado oil, allegedly making the labeling false and misleading and causing the plaintiff to believe the product was made with a significant and/or predominant amount of avocado oil–a trait for which he purported was willing to pay a premium price. The plaintiff seeks to represent a class of fellow avocado lovers to pursue claims for violation of various states’ consumer protection statutes, breaches of warranty, negligent misrepresentation, fraud, and unjust enrichment. Plaintiff Catches More Sighs with Honey? Donadio v. Bayer Healthcare LLC, No. 6:22-cv-06521 (W.D.N.Y. Nov. 21, 2022). A large pharmaceutical manufacturer was recently stung by a putative class action filed in NewYork federal court that takes issue with one of the defendant’s over-the-counter “Honey Lemon Zest” mix-in powder packets, which are promoted for “Severe Cold & Flu.” According to the complaint, the product’s fresh lemon wedge and dripping honey dipper imagery featured beside a “cup of steaming tea” appeals to consumers who want “more natural” over-the-counter products. The plaintiff alleges that the powder packets’ labels misleads consumers to expect the mix-in to contain honey and “lemon zest” ingredients, based on the product’s name, when, apparently, the ingredients list discloses neither. The plaintiff also argues that the product implies that it contains vitamin C to improve consumer health and immunity based on the label’s lemon wedge image coupled with the “Lemon Zest”words in the product’s name, despite the complaint recognizing that the label makes no affirmative reference to any added vitamin C and that no evidence or study supports a connection between vitamin C and immunity. The plaintiff seeks certification of a New York and Consumer Fraud Multi-State class of purchasers, asserting claims for violation of state consumer protection laws, breaches of warranty, violation of the Magnuson-Moss Warranty Act, fraud, and unjust enrichment. Pre-Workout Packs (Artificial) Punch Scheibe v. eSupplements, LLC, No. 3:22-cv-01765 (S.D. Cal. Nov. 10, 2022). New to the fitness circuit, a California plaintiff claims that he recently sought to lose weight and add muscle mass, which led him to the defendant’s dietary supplements, including an amino acid blend and pre-workout powder. But while in search of serious gainz, the plaintiff claims he was duped by the defendant’s labeling. Despite the product’s labeling reporting just 5 calories per serving for the amino acid blend and no calories per serving for the pre-workout powder, the plaintiff claims that independent testing revealed each product contains 56 calories per serving. Sorely disappointed, the plaintiff claims that the respective labeling representations were false and deceptive. The plaintiff also takes issue with the defendant’s claims that its blue-raspberry- and grapeflavored products are “Naturally Flavored with Other Natural Flavors,” which, along with “depictions of [blue] raspberries, purportedly represents to consumers that the products are ”exclusively naturally flavored.“ The complaint alleges that the workout supplement contains an artificial form of malic acid (dl-malic acid), making the natural claims false and misleading. Based on those theories, the plaintiff seeks certification of a California class of purchasers and asserts claims for violation of California’s consumer protection statutes and for unjust enrichment. Motions To Dismiss Procedural Posture: Granted You Butter Believe It! Ledezma v. Upfield US Inc., No. 1:22-cv-01618 (N.D. Ill. Oct. 31, 2022). A federal court recently melted a plaintiff’s suit that alleged the front label representations of an ”I Can’t Believe It’s Not Butter!“ product, which included two olives and the phrase ”With Olive Oil“ was misleading because the spread did not contain a predominant or nonde minimis amount of olive oil. Cutting right to the chase, the court found that (1) the plaintiff lacked standing to pursue injunctive relief because the product’s labeling did not present a risk of future injury because she now knows the product does not meet her previous expectations and faces no risk of purchasing the product due to any alleged misrepresentations; and (2) the plaintiff’s Illinois and other state consumer protection law claims failed because no reasonable consumer would expect the phrase ”With Olive Oil“ and depictions of two olives on a product’s label to indicate the product contained a particular amount of olive oil or more olive oil than other vegetable oils. Following the court’s opinion, the plaintiff (perhaps, succumbing to her margarine of error), noticed a voluntary dismissal of the case. (Uh-)Oh, Baby! In re Plum Baby Food Litigation, No. 1:21-cv-02417 (D.N.J. Oct. 31, 2022). The New Jersey district court put an end to the plaintiffs’ baby food litigation, granting the defendant’s motion to dismiss without prejudice. The underlying complaints all alleged that the defendants’ baby food products contained heavy metals, rendering them defective and unfit for use, and contended that the defendants knowingly sold those products while failing todisclose that information to consumers. But thedistrict court dismissed theplaintiff’s claims for want of standing, concluding that the plaintiffs failed to establish Article III standing and failed to establish grounds for injunctive relief. The court held that the plaintiffs failed to

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 1 3 allege economic harm, as they had only vaguely asserted that they thought the products were ”safe“ for babies—an assertion that the court deemed to be ”fairly nonspecific.“ The court also pointed out that the plaintiffs failed to point to labeling statements specifically related to heavy metals, nor did the plaintiffs argue that any of the specific labeling claims (e.g., that the products were ”nutritious“ and ”packed with essential vitamins and minerals“) were untrue. Finally, the court stated that the plaintiffs failed to allege that the presence of heavy metals in the products rendered them ”worthless,“ noting, among other things, the FDA’s opinion instructing parents not to throw out their supply of packaged baby foods to avoid deficiencies in nutrients and poor outcomes to babies and infants from lack of nourishment. The court also held that the plaintiffs failed to establish a risk of imminent harm to sustain a claim for injunctive relief. Relying on Third Circuit precedent, the district court stated that because the plaintiffs now know of the purported health risks associated with the baby food products at issue, the plaintiffs could not allege a likelihood of future injury sufficient to establish standing for injunctive relief. Sweet Release from Salty Plaintiffs Horti v. Nestle Healthcare Nutrition, Inc., No. 4:21-cv-09812 (N.D. Cal. Nov. 7, 2022). Turns out, the third time wasn’t the charm for this purported class of plaintiffs. A trio of California and NewYork plaintiffs filed suit under their states’ respective consumer protection statutes and for unjust enrichment, alleging that the claims made on the defendant’s Boost Glucose Control line of nutritional drinks were misleading. Specifically, the plaintiffs alleged that the products are sold, marketed, and labeled in a way that leads reasonable consumers to believe that they have an active therapeutic effect on symptoms of diabetes and prediabetes. In reality, the complaint contends, the only difference between the Glucose Control line of products and the defendant’s other Boost drinks is that the Glucose Control drinks contain less sugar. Ruling on the plaintiffs’ third amended complaint, the court found for the third (and final) time that a reasonable consumer would not find the product’s labeling misleading. The court held that the inclusion of the carbohydrate and sugar content on the product’s front label and the description of the products as ”balanced nutritional drinks“ make clear that the products are a food that will necessarily impact blood glucose levels, as opposed to a health supplement or drug. This was especially true, noted the court, because of the product’s target audience: individuals with diabetes who are particularly aware of the impact of foods on blood glucose levels. The court also found another, independent reason to dismiss the complaint (for a third time): the plaintiffs failed to adequately allege that they paid a premium price for the products, and thus failed to establish standing. While the plaintiffs alleged that they paid more for the Boost Glucose Control products than they otherwise would have, they failed to provide sufficient facts about the price of alternatives. Having found that the plaintiffs have had enough bites at the apple and that further amendment would be futile, the court dismissed the third amended complaint without leave to amend. Greenwashing Lawsuit Fizzles Out Earth Island Institute v. The Coca-Cola Co., No. 2021 CA 001846B (D.C. Sup. Ct. Nov. 10, 2022). After bubbling up for a year and a half, a plaintiff’s attacks on a large beveragemanufacturer’s corporate ethos and aspirational sustainability goals ran flat when a DC state court dismissed the plaintiff’s complaint in full. The complaint accused the defendant of ”greenwashing“— or, attempting to appear environmentally conscious—when, according to the plaintiff, the defendant allegedly ”generate[d] more plastic waste than any other company in the world.“ Ultimately, the plaintiff’s tower of canned allegations came tumbling down when the DC Superior Court concluded that the disputed statements were not actionable marketing practices under the District of Columbia Consumer Protection Procedures Act (CPPA) and could not be proven true or false because they pertain to the company’s corporate values and future goals. The court further held that the CPPA requires allegations that the deception involves ”goods or services,“ which the statements at issue here did not as they did not appear on the products themselves. Lastly, the court held the plaintiff failed to allege that a ”reasonable DC consumer could be misled by a general impression“ based upon its own ”assertions [which] reveal the fundamentally flawed premise of its [c]omplaint.“ Each of the statements identified in the complaint were found to be ”aspirational, limited, and vague[,]“ as opposed to specific misrepresentations of a material fact. The court took particular care to distinguish the defendant’s broad plans to ”refresh the world“ with milestones set several years in the future from another ”greenwashing“ suit where the defendant in that case made more concrete statements regarding their present ”sustainable stewardship.“ Procedural Posture: Denied Challenge to Fruit Snack Suit Deemed Fruitless Marino v. YummyEarth, Inc., No. 3:22-cv-02739 (N.D. Cal. Nov. 3, 2022). A district court in California ruled that a major manufacturer of gummy candies can’t quite escape a sticky situation. The complaint alleged that the plaintiff expected themanufacturer’s gummy candies to contain actual fruit because the product was labeled as a ”fruit snack“ rather than as a ”fruit flavored snack.“ But according to the defendant, it is the plaintiff’s suit—and not the defendant’s candies—that is fruitless. In opposing the motion to dismiss, the defendant argued that its fruit snacks’ labels were not misleading because the product contains fruit juice, even if no actual fruit. The defendant also attacked the plaintiff’s standing to challenge the fruit snack products and argued that the plaintiff’s claims were preempted by federal FDA regulations. The district court refused to bite, denying the defendant’s motion to dismiss on all grounds in a brief, two-page order. First, the court squeezed the defendant’s preemption argument, finding that theplaintiffplausibly alleged facts to support a conclusion that theproduct labels were not in compliance with FDA regulations. The court also refused to buy the defendant’s argument that its labels were not potentially misleading just because they contained fruit juice, primarily because the packaging depicts a number of different fruits from which the

FOOD BEVERAGE D I G E S T D E C E M B E R 2 0 2 2 | 1 5 products do not even contain fruit juice, let alone the actual fruit ingredients. The court also found that the plaintiff had standing to pursue her claims and to seek injunctive relief because she plausibly alleged she may be harmed again in the future. The motion to dismiss was denied in early November. Now, the parties will need to litigate through the holidays without running out of juice. Regulatory Foodborne Illness Is No Laughing Matter with FDA’s New Food Traceability Requirements The FDA published its final rule establishing additional traceability recordkeeping requirements for certain foods on November 21, 2022. The final rule makes several key changes to the existing ”one-up, one-back“ recordkeeping requirement and imposes some wholly new requirements on those involved in food production, distribution, and sale. These recordkeeping requirements are aimed at making it easier to assist the FDA in identifying and removing food from the market in certain situations, such as to help prevent or mitigate a foodborne illness outbreak. However, compliance with the final rule is no simple task. The final rule applies to persons who manufacture, process, pack, or hold food that is on the Food Traceability List, subject to certain exemptions and partial exemptions. For those who cannot avail themselves of any of these exemptions, specific supply chain activities (referred to as Critical Tracking Events (CTE)) will trigger the recordkeeping requirements. The Key Data Elements (KDE) that must be recorded, maintained, and/or provided to others will vary depending on the type of CTE. And that’s not all. A traceability plan must also be established. While it is never too early to start working to implement the necessary changes to comply with these new requirements, the final rule’s compliance date is not until January 20, 2026. From the Food & Beverage Team at Alston & Bird, wishing you and yours a punny, warm holiday season and New Year. Angela Spivey 404.881.7857 Sean Crain 214.922.3435 Reagan Drake 404.881.7150 Jamie George 404.881.4951 Samuel Jockel 202.239.3037 Barbara Jones-Binns 202.239.3139 Taylor Lin 404.881.7491 Contributing Authors Rachel Lowe 213.576.2519 Andrew Phillips 404.881.7183 Alan Pryor 404.881.7852 Troy Stram 404.881.7256 Amanda NewtonWellen 404.881.4809 Krupa S. Zachariah 202.239.3241 Learn more about our Food & Beverage Team

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