Alston & Bird's Food & Beverage Digest, October 2021

FOOD BEVERAGE D I G E S T O C TO B E R 2 0 2 1 | 7 Consumer Sours on Applesauce’s 100% Real Fruit Claim Schneider v. Mott’s LLP , No. 21-L-0884 (20th Jud. Cir., St. Clair Cnty., Ill. Sept. 7, 2021). A particularly saucy Illinois consumer sued an apple products maker, alleging that its “made from 100% real fruit” claim on its applesauce products are deceptive. The plaintiff alleges that the claim leads consumers to believe that the applesauce does not contain ingredients other than apples or other fruit when in fact, it contains a number of non-fruit ingredients, such as high fructose corn syrup. The plaintiff seeks to certify an Illinois and nationwide class of purchasers and asserts violations of Illinois law, breach of express warranty, and unjust enrichment. No Honey, No Graham, So Just … Crackers? Hauger v. Dollar General Corporation , No. 1:21-cv-01270 (C.D. Ill. Sept. 23, 2021). According to an Illinois consumer, crucial ingredients in her beloved s’mores are not what they appear to be. The plaintiff alleges that even the name of the defendant’s Honey Graham Crackers is misleading because neither honey nor graham flour is a predominant ingredient. Instead, the plaintiff alleges, the crackers contain more enriched flour than graham flour and more sugar than honey. Consumers, the complaint claims, apparently believe graham flour and honey are healthier, more natural, and more valuable, making the true distribution of those ingredients problematic. The plaintiff seeks to represent a class of Illinois consumers and a “Consumer Fraud Multi-State Class” consisting of Iowa and Arkansas consumers for violations of Illinois’s consumer protection statute, breach of warranty, negligent misrepresentation, fraud, and unjust enrichment. Not Living the High Life Beyond Pesticides v. Summitt Labs LLC , No. 2021 CA 002743 (D.C. Super. Ct. Aug. 6, 2021). A nonprofit group that in recent years has sued companies such as Monsanto, TruGreen, and ExxonMobile and even the Environmental Protection Agency for a range of environmental issues has challenged the defendant’s line of Kore Organic CBD products. The nonprofit claims that the defendant harshed its mellow by deceptively advertising its products as organic in violation of the District of Columbia Consumer Protection Procedures Act. The group asserts that the defendant does not appear in the U.S. Department of Agriculture’s (USDA) Organic Integrity Database and that it does not identify any organization overseeing its organic claims. Beyond Pesticides also claims that the USDA has stated it does not intend to regulate the use of the claim “organic” on CBD products except when the products claim to be certified organic by a USDA-accredited certifier. Rather than get a contact high by proceeding as a class or seeking damages, the nonprofit seeks to do the public a solid by pursuing only declaratory and injunctive relief. It’s not just paranoia: this suit comes one year after the defendant recalled certain of its Kore Organic products due to high lead levels, which allegedly tipped off the nonprofit and its investigative arm, Organic Eye, to look into the company further. Motions to Dismiss Procedural Posture: Granted Think Social Media Hashtags Matter to Reasonable Consumers? #HoldMyBeer Jackson v. Anheuser-Busch InBev SA/NV LLC , No. 1:20-cv-23392 (S.D. Fla. Aug. 18, 2021). A complaint challenging the craft nature and origin of a Miami-based beer recently met its fate before a district court flexing its social media knowledge. The complaint alleges that a multinational brewer has hoodwinked craft beer aficionados by founding a brewery in Miami and positioning it as having significant ties to Miami and Latin American roots. It is even alleged that the brewer branded using the Spanish shorthand for “beer” (Veza) and uses the slogan “hecha en Miami” (made in Miami) on social media. The district court didn’t fall for the clickbait, concluding that this alleged conduct would not mislead reasonable consumers. Why? According to the district court, facts. It noted that even the complaint conceded that the defendant’s ownership of the brewery has been widely publicized since thebrewery’s inception. Under a safeharbor, theFlorida consumer protection claim also was not actionable because the defendant obtained a certificate of label approval from the U.S. Treasury’s Alcohol and Tobacco Tax and Trade Bureau for the beer. Finally, the district court didn’t think much of the plaintiffs’ challenge to the hashtag #HechaenMiami, reasoning that it was nonactionable puffery because reasonable consumers would not place any stock in “social media marketing tools that streamline data categorization.” In a procedural quirk, while the defendants’ motion to dismiss was pending, the case kept progressing through discovery. In granting the defendants’ motion to dismiss, the district court rendered moot months of discovery and a pending motion for class certification. Talk about a high cost per click.