PERKINS COIE IS PLEASED TO PRESENT ITS THIRD ANNUAL FOOD LITIGATION YEAR IN REVIEW, summarizing important developments in consumer litigation affecting the food and beverage industry. Class action litigation against the food and beverage industry continued unabated in 2018, with 158 new lawsuits filed—a figure equaling 2015’s high-water mark. And despite some favorable rulings at the motion to dismiss stage, on balance indicators suggest that these filing trends will continue in 2019 and beyond.

Once again, the “reasonable consumer” defense remained at the forefront in decisions on motions to dismiss. Several judges rejected a series of lawsuits challenging the use of the term “diet” for various diet drinks, concluding no “reasonable consumer” expects drinking diet soda is necessarily going to cause weight loss. These courts likewise placed under stricter scrutiny plaintiffs’ counsel’s reliance on scientific studies to prop up otherwise implausible complaints.