Food & Beverage Digest - July 2022

FOOD BEVERAGE D I G E S T J U LY 2 0 2 2 | 5 Consumers Peeved About Peanut Butter Bopp v. The J.M. Smucker Co. , No. 2:22-cv-01812 (D.S.C. Jun. 8, 2022). A putative class action filed in South Carolina federal court accuses a leading peanut butter producer of falsely advertising its peanut butter products as safe for human consumption when, in fact, they allegedly cause illnesses stemming from Salmonella contamination. The plaintiff alleges that when consumers purchase the company’s peanut butter products— which are advertised as high quality—they expect they are getting safe and healthy peanut butter. But according to the complaint, many of the defendant’s peanut butter products were contaminated with Salmonella and recalled as a result. Based on these allegations, the complaint asserts putative class claims for negligence, breach of warranties, fraudulent concealment, and unjust enrichment. The plaintiff prays for compensatory and punitive damages, injunctive relief, and attorneys’ fees and costs. Consumer Shook Up over Fizzy Drink Ingredients Tatum v. Talking Rain Beverage Co. , No. 3:22-cv-03525 (N.D. Cal. Jun. 15, 2022). It’s hot out there, folks. But before you reach for a flavored sparkling water to quench your parched palate, a plaintiff in a new lawsuit urges you to dig further into the ingredients of a major fizzy water product. According to the putative class action complaint, the defendant uses an artificial form of malic acid to flavor its carbonated concoctions, yet it markets its product as being derived from natural sources. Naturally , the use of malic acidmeans the absence of natural flavoring, right? Not necessarily! As theplaintiffacknowledges, some forms ofmalic acidarenaturallyderivedandaregenerally regarded as safe by the FDA. But the plaintiff contends that the defendant uses DL-malic acid, an artificial derivative, to impart a tantalizing tart flavor in its drinks rather than using the pricier natural alternative. Accordingly, the plaintiff—aWashington resident—brings suit on behalf of herself and a nationwide class of consumers, while also purporting to bring suit on behalf of a California subclass of residents (not her home state). She seeks to recover for statutory violations of Washington and California state consumer protection laws, as well as common-law violations for alleged breaches of express and implied warranty, negligent misrepresentation, and fraud. Less Protein, Mo’ Problems for Plant-Based-Meat Manufacturer Yoon v. Beyond Meat Inc. , No. 3:22-cv-00855 (S.D. Cal. Jun. 10, 2022). Ramirez v. Beyond Meat Inc. , No. 2:22-cv-04404 (C.D. Cal. Jun. 28, 2022). Deloss v. Beyond Meat Inc. , No. 2:22-cv-04405 (C.D. Cal. Jun. 28, 2022). Aplant-based-meatmanufacturer faces threeputativeclass actions inCalifornia federal courts for allegedly overstating the amount of protein in its plant-based products while relying on advertising materials that promote the products’ “equal or superior protein” content to real meat. According to the plaintiffs, one product at issue claims to provide 20 grams of protein per serving and 40% of the protein Daily Value. But independent testing conducted by the plaintiffs in two of the three suits apparently revealed otherwise, finding the same product contained only 18 grams of protein per serving with an actual daily protein value of around 35%. The problem, according to the plaintiffs, is that the labels mislead consumers into believing the plant-based products contain more protein than they actually do. Oneof the three suits raises anadditional problemwith thedefendant’s plant-basedproducts, alleging that the defendant previously misrepresented its products as being “all-natural,” “organic,” or containing no “synthetic” ingredients, despite containing the synthetically produced ingredient methylcellulose. The complaint admits that the defendant has since “backtrack[ed]” on these claims and now discloses the methylcellulose ingredient. But that’s not enough for these plaintiffs who are holding onto their false-labeling claims. Together, the three suits seek certification of classes of purchasers in Illinois, California, New York, and Massachusetts. One suit also asserts claims for breach of warranty, fraud, and negligent misrepresentation, while the other two stick to asserting claims for violations of state consumer protection statutes and violation of the Magnuson–Moss Warranty Act. Has Plaintiff Found the Formula for Success or Is She Just Kidding Herself in Toddler Drink Case? Garza v. Gerber Products Company , No. 1:22-cv-03098 (N.D. Ill. Jun. 14, 2022). In this putative class action, the plaintiff takes on a category of products marketed to children between 12 and 36 months old known as “transition formulas” or “toddler milks.” According to the complaint, the rate of breastfeeding has increased significantly over the past two decades, resulting in a decrease in sales of infant formula—an accepted alternative when breastfeeding is not an option for children zero to 12 months old. Baby food manufacturers have allegedly turned to transition formulas to make up for the lost sales. The plaintiff claims that these transition formulas are not nutritionally appropriate, but they are misleadingly marketed as the “next step” in the progression from infant formula. The plaintiff is represented by the prolific Spencer Sheehan. One problem Sheehan will face? A judge from the S.D.N.Y. dismissed similar claims against a private-label transition formula earlier this year, finding, among other things, that the plaintiff in that case had failed to identify any specific misleading advertisement or statement and instead argued the transition formula industry as a whole deceived consumers. If the court here follows the reasoning of that earlier opinion, this could be a case of the “terrible twos” for Sheehan.