Alston & Bird's Food & Beverage Digest January 2021

FOOD  BEVERAGE D I G E S T J A N U A R Y 2 0 2 1 | 3 New Lawsuits Filed Another Cup of Freshly Ground Coffee Servings Lawsuits Moser v. The J. M. Smucker Company , No. 1:20-cv-07074 (N.D. Ill. Nov. 30, 2020). As we highlighted in the June, July, and August 2020 editions of the Food & Beverage Digest , suing coffee manufacturers and their retailers for allegedly misrepresenting the number of cups of coffee that could be brewed from their products became something of a trend in 2020, and it seems sure to continue in 2021. In another recently filed putative class action in Illinois federal district court, the plaintiff piggybacks on several of these lawsuits and alleges that she purchased ground coffee after relying on statements on the labeling that advertised the number of cups that could be brewed from a container of the coffee. She alleges that she only later discovered that the products did not yield the number of servings advertised. The plaintiff also contends that the coffee maker intentionally exaggerated the amount of coffee that could be brewed to induce consumers to purchase its products and that this conduct violates various state consumer protection statutes. Bougie Boozers Incensed over Rum Age Representations Alonzo v. William Grant & Sons Inc ., No. 1:20-cv-10937 (S.D.N.Y. Dec. 27, 2020). A New York consumer has taken issue that his spirit of choice might not be aged as long as the product represents it to be. William Grant imports from Nicaragua and sells Flor de Caña rum, which features a label that includes representations such as “Tradition,”“Artisanal,”“18,” “Slow Aged,” and “Single Estate Rum.” The combination of those representations, according to the complaint, gives consumers a misleading impression of the age of the product. Rum, like other spirits, must be advertised using the age of the youngest spirit included in the finished product when it features a statement of age (“___ years old”). According to the plaintiff, “blending rums of different ages without telling purchasers is deceptive because consumers have come to expect that prominent numbers on the front labels of spirits refers to the age of the youngest spirit used.” While the plaintiff admits that the product doesn’t technically violate the statement of age regulations, he argues that the labels are nevertheless misleading because 18 is the average age of rum in the product, rather than youngest, as liquors are traditionally labeled. The plaintiff alleges that he and other class members desired to purchase a product that was 18 years old and understood the number 18 and “Slow Aged” to refer to a statement of age (despite recognizing those claims do not violate the statement of age regulations). The suit complains the product is worth less than advertised and that had the class members known the truth of the rum’s age, they would not have bought the product or would have paid less for it. The plaintiff alleges violations of New York consumer protection statutes as well as negligent misrepresentation, fraud, and unjust enrichment. Consumers Keep Drawing from the (Mostly) Empty Well of Slack-Fill Suits Iglesia v. Tootsie Roll Industries LLC, No. 3:20-cv-18751 (D.N.J. Dec. 10, 2020). As we previously covered, courts have consistently concluded that slack-fill suits are more than a little empty. Yet, with recent slack-fill wins and classes certified by the district courts (covered in the April and July 2019 editions) and despite slack-fill losses (covered in the August 2019 and May 2020 editions), consumers and their law firms once again are drawing from the slack-fill well again. The consumer in this suit again targets Junior Mints and Sugar Babies, the boxed candies that are ever-present at movie theatres. Predictably, she alleges that these products are only a little over half full and that their opaque packaging “dupes” consumers into thinking they are receiving more candy than they are paying for. This empty space, or slack-fill, the plaintiff contends, serves no functional purpose. In addition, although the candy maker recently updated its packaging, the plaintiff claims that change does not remedy the prior losses the plaintiff and putative class members suffered. The plaintiff seeks to certify a New Jersey class for a range of New Jersey consumer and common-law claims. Other suits have challenged the exact same products, with mixed results. Time will tell whether this consumer and her law firm went to the slack-fill well one too many times. Smoking Out Deceptive “Smoked Provolone Cheese” Jones v. Dietz & Watson Inc. , No. 1:20-cv-06018 (E.D.N.Y. Dec. 9, 2020). Dietz & Watson faces a putative class action alleging that labeling the company’s packaged cheese product as “Smoked Provolone Cheese” is misleading because the “smoked” flavor is added, not from actually smoking the cheese. The complaint alleges that consumers expect a product labeled as “smoked”—which does not include any qualification that the product is flavored—to get its smoked flavor from being smoked over wood chips. But, as declared on the label’s ingredient list, the cheese actually is flavored with added “smoke flavor.” The complaint argues that the label is false and misleading because it should have included the common or usual name of the food, “Natural Smoke Flavored Provolone Cheese” to indicate that the cheese is flavored with smoke flavor. The plaintiff seeks to certify a nationwide class of purchasers and asserts violations of New York consumer protection statutes, negligent misrepresentation, breaches of warranties, fraud, and unjust enrichment.