This post originally appeared on Law360. Americans have increasingly accepted meat and dairy alternatives as staples in their daily diets. For example, recent market research shows that two out of every five U.S. consumers plan to purchase plant-based meat products in 2023.[1]The prevalence of these forms of alternative protein has set the ..read more

Four years ago, in a widely covered decision, the Second Circuit held that the phrases “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN” on the front of Cheez-It cracker boxes could plausibly deceive reasonable consumers into believing “that the grain in the product is  , 910 F.3d 633 (2d Cir. 2018). The panel was unpersuaded by Kellogg’s argument that the ingredient list on the side of the box, which listed “enriched white flour” as the top ingredient by weight, cured any misleading message conveyed by the front-box statements.  In the panel’s view, reasonable consumers “should not be expec ..read more

A few months ago, we an imminent decision that would address, for the first time, a long-unsettled question for class actions brought under New York’s General Business Law (“GBL”): can a class of consumers obtain class-wide statutory damages under the GBL in federal court, even though the New York legislature has expressly prohibited statutory damages for GBL class actions brought in state court ..read more

For decades, Plaintiffs and defendants have fought bitterly over most aspects of class-action law.  One issue, however, had managed to escape serious contention: the propriety of paying “incentive awards” (also known as “service awards”) to class representatives.  Broadly speaking, such awards are sums paid to named plaintiffs—above and beyond what they receive as ordinary class members—to compensate them for the time, effort, and inconvenience their role may require.  According to , these awards are generally modest, averaging 0.16% of the class-wide recovery, with a median of ..read more

A common maxim in the service industry is that the customer always knows best. But a recent decision from the Tenth Circuit suggests that the maxim has its limits when it comes to interpreting ambiguous marketing claims.  In Bimbo Bakeries USA, Inc. v. Sycamore , the court held that the advertiser’s use of the word “local” in promoting its bread was not actionable under the Lanham Act, even though both a consumer survey and a jury of consumers had found the term to be misleading.  The decision reflects courts’ growing comfort in rejecting proffered interpretations of labeling claims ..read more

On June 25, the Supreme Court held in a 5-4 decision that Article III prohibits certification of a class and a damages award where the majority of class members lack actual injury.  In , the Ninth Circuit Court of Appeals had previously concluded that a class of over 8,000 individuals who could prove violations of the Fair Credit Reporting Act—and had actually proved them at trial—had standing to pursue damages at trial, even if they had not demonstrated that they had suffered concrete harm.  The Ninth Circuit reasoned that violations placed the class members at sufficient of harm to ..read more

A few months ago, we analyzed the Ninth Circuit’s decision in , No. 19-56389 (June 4, 2021), which held that a private plaintiff’s challenge to poultry labeling claims were preempted by federal law, warranting dismissal at the pleadings stage.  However, the Ninth Circuit’s recent decision in , No. 20-55969 (Oct. 26, 2021), declined to apply preemption in a similar challenge to labeling claims on poultry products.  In this post, we examine the two decisions and conclude that, notwithstanding remains the benchmark for future litigation in this area ..read more

The Second Circuit recently decided an appeal of a putative consumer class action, in which New York Starbucks patrons alleged that the smell of freshly brewed coffee wasn’t the only thing wafting in the air at the famous coffee chain.  Plaintiffs in alleged that Starbucks had engaged in deceptive marketing because, at the same time the company was promoting its coffee as high-end and high-quality, some of its New York stores were also liberally deploying noxious pesticides to contain insect infestations. Like a loafer to a cockroach, however, the district court and then the Second Circui ..read more

, the Tenth Circuit affirmed a district court’s dismissal of a putative class action alleging that Champion Petfoods had deceptively marketed its Orijen-brand dog food.  The plaintiffs’ claim centered around an incident in 2018, when Champion Petfoods learned that some ingredients it had sourced for Orijen had been contaminated.  According to the plaintiffs, this incident—as well as other aspects of Champion’s sourcing and manufacturing process—rendered false Champion’s marketing claims that the products’ ingredients were generally high-quality.  In rejecting this contention, th ..read more

Nadav D. Ben Zur and Joshua Kipnees Consumers in false-advertising cases have long targeted food packaging for purportedly misrepresenting the presence or quantity of an ingredient in a product.  These litigants typically contend that a product’s name—e.g., “All Butter Loaf Cake””—or other labeling text—e.g., “Made With Whole Grain”—creates expectations that the product be made entirely or predominantly with the advertised ingredient.  And when these products do not contain “sufficient” amounts of the advertised ingredient, consumers claim to have been deceived.  In response, ma ..read more