Food and Beverage Class Actions: Reasonable Consumer Defense in False Advertising and Deceptive Labeling Cases
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, July 30, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will address class actions alleging false advertising and deceptive/ambiguous labeling claims for food and beverages, and whether the decision in McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), has had an impact on the "ambiguity rule" in and outside the Ninth Circuit. The speakers will review trends and current developments of the reasonable consumer standard and how the element of "context" affects the analysis at different stages of the case.
Ms. Wicklund works of counsel to Richman Law & Policy. Her work focuses on the domestic food supply, including issues of pesticide use, environmental health, and the welfare of farmed animals. Ms. Wicklund strives to ensure consumers have honest information regarding their food choices, and the knowledge to protect their, and their families’, health.
Ms. Henry excels at helping clients respond to sensitive and complex litigation, including class actions. Her experience includes actions involving alleged violations of California's Unfair Competition Law and False Advertising Law and other state's equivalents, including Florida's Unfair and Deceptive Trade Practices Act and New York’s General Business Law §§ 349 and 350, alleged violations of price gouging statutes, alleged breach of contract, including distribution and supply agreements, and business torts, including intentional interference claims and theft of trade secrets.
Mr. Biderman focuses his practice on mass tort litigation and consumer class actions. He represents packaged food companies, coffee companies, dairy companies, footwear companies and others whose nutritional or health claims have been challenged. Mr. Biderman also has represented search engines and other online companies. For 15 years, he managed the firm’s full-service product liability team responsible for defending over 1,000 toxic tort cases pending in Los Angeles and Northern California state courts. Mr. Biderman speaks and writes regularly on class action issues.
The torrent of food labeling class actions has not slowed, though over time specific labeling issues may ebb and flow. Defendants include major food companies to small, family-owned businesses. A gauntlet of federal laws, agency regulations (FDA, FTC, USDA), and state consumer protection laws apply.
To prevail on a claim for deceptive advertising/labeling, plaintiffs must plead and prove that a subject statement or label is likely to deceive reasonable consumers. The analysis requires considering all the information available to the consumer and the context in which that information is being provided. McGinity v. P&G may offer defendants some leverage at the motion to dismiss stage. In 2023, at least eight decisions involving the reasonable consumer defense were issued by the Second and Ninth Circuits.
Much of the litigation focuses on specific chemicals, such as PFAS, or certain additives, such as citric acid and malic acid, which plaintiff’s assert render "all natural" or "no artificial flavors" or "no preservatives" false and misleading. The use of terms such as "sustainable," certified, and claims about carbon footprints or other "green" issues may be new versions of traditional themes.
Listen as this panel discusses best strategies for either obtaining or avoiding dismissal of false labeling claims, current trends, and recent case law.
- Food and beverage class actions
- False advertising
- Mislabeling
- Reasonable consumer standard
- Resolving ambiguous claims
- Strategies at the certification stage
- Considerations after certification decision
The panel will review these and other key issues:
- What is the effect of McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023) on the "ambiguity rule" in and outside the Ninth Circuit?
- What defense approaches can prevail at certification and trial in food and beverage class claims?
- What are the latest legislative and case law developments impacting food and beverage claims?
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