Alston & Bird's Food & Beverage Digest, February 2022

FOOD BEVERAGE D I G E S T F E B R U A R Y 2 0 2 2 | 7 A plaintiff filed suit in New York federal court after she purchased and consumed Miracle Noodle Fettuccine Shirataki Noodles, a plant-based alternative to pasta that is made with a root plant known as konjac. According to the complaint, food made with konjac will make you feel less full, but you stay that way—konjac is “indigestible” and “swells in the human digestive tract,” creating significant risks of choking and intestinal blockage. The plaintiff contends that the defendants were well aware of the risks of konjac-based products— consumers complained on one of the defendant’s website of “horrendous stomach ache[s]” and other ill health effects. Yet, according to the complaint, the defendants continued to manufacture and sell the product, often as a potential weight-loss supplement. The plaintiffwas hospitalized after doctors uncovered an undigestedmass of Miracle Noodles requiring emergency bowel surgery. She now brings claims for negligence, breach of implied warranty, violations of the New York General Business Law, and strict liability violations for failure to warn and defective design. Motions to Dismiss Procedural Posture: Granted Oversweet Amount in Controversy Allegation Spoils Caramel Topping Case Rand v. Kilwins Quality Confections Inc. , No. 1:21-cv-01513 (N.D. Ill. Jan. 10, 2022). Suppose a plaintiff filed a putative class action alleging that your sea salt caramel topping overstates its contents. Instead of filing in one of the most plaintiff-friendly venues in the country, he inexplicably filed the case in Illinois federal court, citing the court’s jurisdiction under the Class Action Fairness Act (CAFA). Now suppose you took a hard look at your sales of the challenged product and realize that, contrary to the plaintiff’s claim that the amount in controversy exceeds $5million, only about $286,000 in product sales are at issue. Do you take the risk and litigate the case in federal court, which undoubtedly would be more receptive to your heady preemption arguments, and risk an appellate court that finds the court lacked subject-matter jurisdiction? Or do you double down in state court, knowing well that the case won’t resolve until class certification, summary judgment, or even trial. This hypothetically sticky situation became all too real for our champion of confectionary candy covering. It concocted a combined course in a surprisingly contested motion, leading with the CAFA jurisdictional question and following with its substantive arguments for dismissal. Giving the plaintiff every benefit in its amount in controversy calculation (compensatory damages, a 9x multiplier on punitive damages, and restitution), the best the district court could confect was $3.9 million, still well below the $5 million amount in controversy threshold. It allowed the plaintiff one more chance to save its federal lawsuit; otherwise, the case is destined for state court. The Space Between … Popular Fruit Snacks Klausner v. Annie’s Inc. , No. 7:20-cv-08467 (S.D.N.Y. Jan. 24, 2022). A putative class of New York plaintiffs can no longer fill their time—or their snack bags, it seems—following a dismissal with prejudice of their slack-fill claims against the defendant. The plaintiff alleged, on behalf of a putative consumer class, that more than 60% of a popular fruit-snack box is composed of empty space, or slack-fill. According to the plaintiff, the size of the fruit-snack box was so large that consumers believed they were buying more fruit snacks than they actually were. The plaintiff brought claims for violations of the New York General Business Law, negligent misrepresentation, breaches of express and implied warranty, fraud, and unjust enrichment. A NewYork district court judge tossed the amended claims for good, finding no likelihood of future harm because the plaintiff alleged that she (1) repeatedly purchased the snacks with the knowledge of the empty space inside; and (2) wouldn’t make the same purchase until the defendant changed the purportedly misleading packaging. Future plaintiffs face an uphill battle in bringing slack-fill claims. The district court’s decision tracks dismissals of similar slack-fill suits against purveyors of fried chicken, pasta, protein powder, and candy. Vanilla Suit Put on Ice, Ice Baby Santiful v. Wegmans Food Markets Inc. , No. 7:20-cv-02933 (S.D.N.Y. Jan. 28, 2022). New year, same vanilla allegations—and same results. In this putative class action, the plaintiffs challenged the terms “vanilla”and“naturally flavored”on the front label of a gluten- free vanilla cake mix. Accepting as true the allegations that the product is not predominantly flavored by natural vanilla extract and that a reasonable consumer cares about the portion of vanilla derived from natural vanilla, the court still dismissed the suit. The court first found that allegations that consumers expect the product to be mainly or predominantly flavored from vanilla beans “are conclusory statements that the Court is not required to accept”and cited a slew of cases reaching the same result. The court also rejected the plaintiffs’ contention that the ingredient list was misleading because it did not disclose the presence of artificial flavoring. That contention was purportedly based on lab testing, but the complaint didn’t contain any information about the testing methodology; the date, time, or place of testing; who conducted the testing; and what the exact product tested was. Moreover, the ingredients at issue—ethyl vanillin, vanillin, maltol, and piperonal—could be either artificial or natural depending on how they are derived. As courts continue to reject these vanilla-flavoring lawsuits, does that mean there is an end in sight? Or will plaintiffs simply search out more receptive judges? In the words of the immortal Vanilla Ice: “Will it ever stop? Yo, I don’t know.”