1 Labeling Cases Filed in September & October 2 Pro Tips from a Protein Bar Case 3 Cracking Down on the Plaintiffs’ Bar in Bottled Water 4 and Farm Fresh Eggs Suits Another Round for the Plaintiffs 5 Preservative Paranoia 7 Cracker Chronicles 8 Breakfast Bars Are Back in the Hot Seat 9 Contributing Authors 11 DECEMBER 2024
2 Labeling Cases Filed in September & October For an amuse-bouche, we’ve gathered the details and served up a chart highlighting the variety of 63 new suits filed in September and October—a taste of the latest labeling claims. Environmental, Social & Governance (ESG) Claims Flavor/Ingredient Claims Foreign Substances Health and Wellness Claims “Natural” Ingredient Claims Nutrient Content Claims Other Servings Per Container Slack-fill 3 4 4 2 1 17 1 19 17
3 Pro Tips from a Protein Bar Case McCausland v. PepsiCo Inc., No. 5:23-cv-04526 (N.D. Cal. Aug. 14, 2024). A recent motion to dismiss from the Northern District of California provides a helpful example of where courts are willing to draw the line on the reach of a preemption defense. The decision may also pump up some fear for protein bar manufacturers everywhere. In McCausland, the plaintiffs alleged that Gatorade Protein Bars were deceptively advertised as promoting health, fitness, and athleticism when they actually contained high levels of total and added sugars that rendered many labeling statements misleading. The plaintiffs further contended that it was deceptive to label the bars as “Protein Bars” because the primary ingredient in the bars was sugar, not protein. The manufacturer sought to dismiss the plaintiffs’ labeling claims on the ground they were expressly preempted by the Federal Food, Drug, and Cosmetic Act because they would impose requirements for labeling sugar that differ from the requirements of federal law. For example, while federal law prohibits a product from making an express or implied health claim (i.e., expressly or by implication characterizing the relationship of any substance to a disease or health-related condition), if the product contains a “disqualifying” level of total fat, saturated fat, cholesterol, or sodium, those regulations do not classify sugar as a disqualifying ingredient. The court agreed with the manufacturer that the presence of sugar in the bars therefore did not preclude express or implied health claims on the bars’ labeling. However, the court found that while some of the challenged statements – like “Protein to Help Muscles Rebuild” – were likely health claims, other challenged statements – like “Backed by Science” and “Used by the Pros” – were not. Preemption did not apply to these voluntary, unregulated claims, so the court declined to dismiss the plaintiffs’ claims. Turning to the plaintiffs’ challenge to even calling the products “Protein Bars,” the court noted that federal regulations require that the common or usual name of a product disclose the presence or absence of any characterizing ingredient if consumers might be misled by the presence or absence of that ingredient. The manufacturer argued that the plaintiffs failed to plausibly allege that consumers expect the term “protein bar” to mean low in sugar – but cited no authorities in support. But the court determined that was a factual issue that could not be resolved on a motion to dismiss. That ruling could embolden the plaintiffs’ bar to target more protein bars, hoping to leverage a victory on a motion to dismiss into a quick settlement. Case Decisions
4 Cracking Down on the Plaintiffs’ Bar in Bottled Water and Farm Fresh Eggs Suits Slowinski v. Bluetriton Brands Inc., No. 1:24-cv-00513 (N.D. Ill. Aug. 9, 2024). Sorkin v. The Kroger Co., No. 1:23-cv-14916 (N.D. Ill. Aug. 6, 2024). In two opinions packed with quips from the court, defendants are on a winning streak in the Northern District of Illinois against false and misleading advertising claims. We’ve previously written about a surge in consumer protection class action litigation over microplastics in bottled water. There, we highlighted a few defense tactics that had been carrying water with courts across the country. Now, we have yet another example of bottled water litigation biting the dust. A Northern District of Illinois court poured out consumers’ claims that they were misled by the bottled water brand’s “natural” label because the water allegedly contains microplastics. In dismissing the complaint, the court found a reasonable consumer could not be misled by the “infinitesimally small amounts of microplastics” in the water just because “the label didn’t say 99.9999999999% spring water.” Rejecting the complaint’s focus on the “natural” label, the court brought its analysis beyond bottled water, concluding that “[n]o reasonable consumer would expect a disclosure about the presence of microscopic particles” because “simply breathing air puts you at risk of inhaling microplastics, [so] it’s unreasonable to assume that your spring water won’t have any microplastics.” The court allowed the plaintiffs leave to amend; however, within a week of receiving the amended complaint, the court issued a minute entry, sua sponte stating that it had reviewed the amended complaint and found it appeared to suffer from the same defects. The court then stayed the defendant’s response deadline and ordered the plaintiffs to file a “concrete explanation … [with] supporting case law” explaining how their claim could proceed. Instead, on the very same day as the court’s order, the plaintiffs filed a notice of voluntary dismissal. Keeping things egg-citing, the Northern District of Illinois also dismissed a plaintiff’s amended complaint alleging that consumers were misled by “farm fresh” egg packaging. Citing a study by an online polling firm, the plaintiff alleged that consumers believe “farm fresh eggs” implies that the hens who laid the eggs are not raised in cages, but instead live freely on a farm. Rejecting the plaintiff’s claims of deception, the court found that no reasonable consumer could interpret the phrase “farm fresh” to mean that the hens “liv[e] on some sort of idyllic farm with a red barn, an abundance of hay, and hens frolicking in elysian green pastures.” Instead, the court noted “farm fresh” refers to origin and timing. The court similarly rejected the plaintiff’s allegations that the egg labels violated the Egg Products Inspection Act and Federal Trade Commission Act, concluding that the plaintiff’s claim was based on a “legally unreasonable interpretation of the product label.” Both suits share a common-sense theme – courts agreed with the defendants that the words mean what they say. “100% natural spring water” means it is water from a natural spring, and “farm fresh eggs” means the eggs are fresh from a farm. Case Decisions
5 Another Round for the Plaintiffs Pizzaro v. Sazerac Company Inc., No. 7:23-cv-02751 (S.D.N.Y. Sept. 25, 2024). Puig v. Sazerac Co., No: 2:23-cv-00856 (M.D. Fla. June 18, 2024). Puig v. Sazerac Co., No: 2:23-cv-00856 (M.D. Fla. Sept. 12, 2024). New York’s hottest club is …the Southern District courthouse in White Plains? Spencer Sheehan has avoided closing time, surviving a motion to dismiss a lawsuit (which we previously covered) over the malt beverage cousin of Fireball Cinnamon Whisky. Like the other lawsuits on tap with which readers of this Digest are undoubtedly familiar, the complaint flows from customers’ alleged mistaken belief that the Fireball Cinnamon malt product was instead the better-known whisky product. The theory of this complaint, however, is not just that two products’ labeling is similar but also that the defendant’s 50 mL “mini” bottle is false and misleading because it suggests a higher alcohol content. The defendant’s motion sought to put the complaint on ice, but the court cut the defendant off. In its opinion, which also considered similar allegations by a different plaintiff over a “mini” bottle of a different alcoholic beverage, the court could not conclude as a matter of law that the Fireball Cinnamon label would not be misleading to a reasonable consumer in light of the label being “nearly identical” to that of Fireball Cinnamon Whisky, which the complaint alleged was famous for being a whisky. The court also held that the shot-size packaging further supported allegations of confusion, given the association between shots and hard liquor. And according to the court, the product’s disclaimer as a “malt beverage” – a disclaimer that the court found ambiguous because it was followed by the phrase “with natural whisky” – was plausibly overshadowed by the labeling elements that mirrored the whisky product. Fireball Cinnamon plaintiffs are not just in a New York state of mind. Hop a flight to [Fort Myers] Beach, where another plaintiff also survived a two-shot attempt to dismiss allegations that the Fireball Cinnamon malt beverage labeling was deceptive. First, in June, a court in the Middle District of Florida allowed claims to proceed against the Fireball manufacturer under Florida consumer protection laws, holding that the plaintiff plausibly alleged that reasonable consumers would likely be misled by the Fireball Cinnamon malt beverage’s labeling, which displayed identical colors, themes, fonts, and graphics as Fireball Cinnamon Whisky’s labeling. The court also held that the allegations sounded in fraud, and that the plaintiff satisfied Rule 9(b)’s heightened pleading standard by alleging precise misrepresentations caused by the product’s trade dress. The bottom of the defendant’s bottle was not completely dry, however: the court dismissed certain allegations that are within Florida’s statutory safe harbor, which insulates food and beverage manufacturers from liability if regulations mandate or specifically permit the misconduct alleged in a complaint. Those allegations included: (1) that the brand name “Fireball” was itself misleading in the absence of a Tobacco Tax and Trade Bureau determination to the contrary; (2) that the malt Case Decisions
6 beverage’s alcohol content is illegible even though it complies with regulations; and (3) the statement of composition – “Malt Beverage with Natural Whisky & Other Flavors and Caramel Color” – is misleading because it appears in the smallest allowable font size. After the plaintiff amended the complaint, the defendant again moved to dismiss, and the court again kept the plaintiff’s tab open. Consistent with the court’s holding in the Southern District of New York, the Florida court held that the miniature size of the bottle was plausibly associated with distilled spirits. It also rejected the defendant’s argument that consumers could not be misled into believing they were purchasing liquor at non-liquor retailers, holding instead that the alleged deception is a question of fact. And although the complaint did not specifically allege that the plaintiff saw or based his purchasing decisions on allegedly deceptive non-liquor retailer displays, the court held that such reliance can be inferred. Finally, the court held that the plaintiff’s allegations that social media comments from other customers purportedly confused by the product’s labeling bolstered the plaintiff’s allegations that reasonable consumers could be misled by the labeling. As these lawsuits continue to heat up, we will continue to cover every last drop. Case Decisions
7 Preservative Paranoia Dimarco v. Aspire Brands, No. 2:24-cv-05021 (E.D.N.Y. July 19, 2024). Sabath v. Haleon US Inc., No. 520891/2024 (N.Y. Sup. Ct. Aug. 2, 2024). Dewitt v. 7-Eleven Inc., No. 521597/2024 (N.Y. Sup. Ct. Aug. 12, 2024). New York courts at the federal and state levels are seeing an uptick in class actions challenging the use of artificial additives in the beverage and beverage-adjacent space. These recent filings follow two well-worn paths in the space – “free from” and “natural flavors” – alleging that these statements are false and misleading due to the presence of certain additives that are purportedly preservatives or artificial flavoring agents. In a class action filed in New York federal court, a plaintiff alleges she was misled by the “No Preservatives” or “No Preservatives Added” claims on energy drink beverages. The complaint alleges that these claims were misleading given the presence of ascorbic acid in the products, which are synthetic compounds with preservative properties. Regardless of the subject intent or purpose of their use, the complaint alleges ascorbic acid will function as a preservative by virtue of its presence alone. Based on these allegations, the complaint alleges violations of the New York General Business Law, breach of express warranty and implied warranty, unjust enrichment, common-law fraud, intentional misrepresentation, and negligent misrepresentation. New Complaints Spencer Sheehan is also at it again at the state court level with two nearly identical complaints targeting “Natural Flavors” and “Natural fruit flavors” statements. The complaints allege that a popular convenience store’s Sparkling Water with Vitamins and Emergen-C raspberry flavored drink mix products are both adulterated and misbranded because their labeling statements and other depictions convey that the product is flavored only by natural fruit flavoring ingredients and not artificial fruit flavoring ingredients when the products contain malic acid. Both complaints detail the manufacturing process for DL-malic acid and allege that for each product “laboratory analysis of the Product was or would be performed,” though they stop short of providing the results of any such studies. The complaints allege violations of the New York General Business Law on behalf of a class of New York consumers.
8 Cracker Chronicles Lanzi v. Dollar General Co., No. 0518296/2024 (N.Y. Sup. Ct. July 5, 2024). Urena v. Wakefern Food Corp., No. 8107031/2024E (N.Y. Sup. Ct. July 7, 2024). Mays v. Wegmans Food Markets, No. EFCA2024001880 (N.Y. Sup. Ct. July 10, 2024). St. John v. Lidl US LLC, No. 617251/2024 (N.Y. Sup. Ct. July 16, 2024). Richardson v. Hannaford Bros. Co., No. EF005935-2024 (N.Y. Sup. Ct. July 21, 2024). Williams v. Mondelēz Global LLC, No. 157710/2024 (N.Y. Sup. Ct. Aug. 21, 2024). O’Leary v. Family Dollar Stores Inc., No. 68029/2024 (N.Y. Sup. Ct. Aug. 24, 2024). Wilson v. Wakefern Food Corp., No. HHD-CV24-6189728 (Conn. Ct. Sup. Aug. 13, 2024). Ransom v. Mondelēz Global LLC, No. 1:24-cv-06216 (S.D.N.Y. 2024). Over the summer, an anthology of cracker-centered class complaints was lodged in state courts across New York. Various food producers and retailers have been sued for allegedly misrepresenting the whole grain content of their graham crackers. The plaintiffs complain that these casual snacks used for making s’mores are more refined than consumers are led to believe. According to the complaint, these brands are over-hyping “whole grain” and “graham flour” on their packaging while their crackers are singing a different campfire tune. The plaintiffs think it’s crumby that refined enriched flour plays a key role on the ingredient list of these products marketed as “whole grain.” The complaints filed in New York courts seek to certify a statewide class of New York consumers who purchased the product. They argue that words like “graham” and “whole grain” on packaging leads shoppers to believe they’re getting a wholesome treat when refined flour is actually doing more of the heavy lifting on the ingredient list. Some complaints allege that defendants add honey and molasses to their crackers to give them a darker color, making them appear like they were made with whole grains despite the predominant ingredient being refined flour, which is white. The New York complaints seek relief for violation of New York General Business Law Sections 349 and 350 because the plaintiffs allegedly paid more for products than they would have if they knew refined flour was the primary flour ingredient. The cases filed in New York state courts were all filed by none other than Spencer Sheehan, a perpetual source of content for readers and authors of this Digest. Complaints popped up in other jurisdictions, namely Connecticut state court and the Southern District of New York, around the same time that Sheehan went on his flour fakery filing frenzy. These complaints follow a similar theory as those penned by Mr. Sheehan. However, the complaint in Ransom v. Mondelēz Global sets its sights on a different cracker variety: saltines – perhaps signaling that these allegations may be pointed toward other product lines in the future. New Complaints
9 Breakfast Bars Are Back in the Hot Seat Chaves v. Topco Associates LLC, No. 613059/2024 (N.Y. Sup. Ct. July 25, 2024). Najmah Singleton v. Target Corporation, No. 0156625/2024 (N.Y. Sup. Ct. July 21, 2024). Long-time readers may remember a series of Spencer Sheehan lawsuits filed in 2021 and 2022 against the makers of various breakfast bars. One lawsuit challenged the amount of strawberry filling in “Ripe Strawberry” bars, and two others, filed in Illinois and Florida, challenged the amount of mixed berries and honey in “Mixed Berry Soft Baked Breakfast Bars.” Summertime must have left Sheehan feeling nostalgic – he returned to the breakfast bar scene with renewed vigor this July, filing new suits in New York state court within one week. These new suits (attempt to) take an academic approach to breakfast bar bashing. First, the 30+ page complaints take courts and defendants on a winding journey through the origins of taste, aroma, and fruit flavor and the histories of federal- and New York–based food legislation. They ultimately get to the crux of Sheehan’s arguments – FDA regulations on “natural flavors,” the synthesis of malic acid, and allegations that the products’ “natural flavor” label claims are false and misleading because the products contain DL-malic acid. If this sounds familiar, you might be a long-time Digest reader. New Complaints Sheehan has previously waged war against the use of DL-malic acid, which is a mixture of malic acid’s two isomers, D-malic acid and L-malic acid. (Think of them as the left- and right-handed versions of the same molecule. The complaints even include the isomers’ chemical structures if you’d like a visual.) L-malic acid is found naturally, but D-malic acid is not. The complaints allege that the breakfast bars contain DL-malic acid, making the products artificially flavored. The basis for these allegations is – you guessed it – uncited lab testing. (One complaint stretches this even further – the lab testing “was, or will be performed” and the result “was or would be, that [D-malic acid] was or would be, identified.”) Of course, the ingredient lists for the products simply state “malic acid” and provide no support for Sheehan’s plaintiffs’ claims. Sheehan must have had a hearty breakfast before taking his next leap: because D-malic acid was (or would be) identified in the products, this “confirmed” that the products contain more artificial flavors than natural flavors, “because malic acid is listed ahead of natural flavor on the ingredient list.” But this assumes that the malic acid used in the products is entirely the artificial DL-malic acid, not naturally occurring L-malic acid. Sheehan, of course, doesn’t distinguish between the two. Having “confirmed” that artificial flavors predominate, Sheehan moves on to discussing the alleged misbranding of the products at length. Each complaint identifies over 10 aspects of the products’ labeling and packaging that supposedly lead consumers to believe that the products at issue do not contain artificial flavoring in the form of D-malic acid. These include such alleged misrepresentations as (1) a label that claims it is
10 “Blueberry – Naturally Flavored,” “Made With Real Fruit & Whole Grains,” and an “Excellent Source of 6 Vitamins”; (2) images of “a picnic table,” “stalks of freshly harvested wheat,” and “two cinnamon cloves”; and (3) the brand names themselves. After pages of detailed history and scientific explanations and numerous repetitions of the alleged deficiencies in the products’ labeling, the complaints end very simply. Each plaintiff seeks to bring one claim for purported violations of New York General Business Law Sections 349 and 350 on behalf of a putative class of New York consumers. New Complaints
11 Angela Spivey +1 404 881 7857 angela.spivey@alston.com Samantha Burdick +1 213 576 1190 sam.burdick@alston.com Rachel Lowe +1 213 576 2519 rachel.lowe@alston.com Amanda Newton Wellen +1 404 881 4809 amanda.wellen@alston.com Alan Pryor +1 404 881 7852 alan.pryor@alston.com Taylor Lin +1 404 881 7491 taylor.lin@alston.com Andrew Phillips +1 404 881 7183 andrew.phillips@alston.com Jonathan Hermann +1 404 881 7275 jon.hermann@alston.com Samuel Jockel +1 202 239 3037 sam.jockel@alston.com Sheena Hilton +1 404 881 7763 sheena.hilton@alston.com Troy Stram +1 404 881 7256 troy.stram@alston.com Jamie George +1 404 881 4951 jamie.george@alston.com Contributing Authors
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