Abby Meyer at Sheppard Mullin Richter & Hampton LLP

Ninth Circuit Issues Long-Awaited Montera Decision Applying New York General Business Law §§ 349 and 350, Confirming “Per...

In the world of class action lawsuits, damages calculations and whether or not prejudgment interest accrues can become high-stakes battlegrounds. These issues are highlighted in the recent Ninth Circuit decision in Montera v....more

8/16/2024 / Beverage Manufacturers , Class Action , Consumer Protection Laws , Corporate Counsel , Deceptively Misdescriptive , Demand Letter , Food Manufacturers , Labeling , Product Packaging

What Must the Consumer Read on Product Packaging? The Answer is Anything but Black-and-White Following the Ninth Circuit’s...

The Ninth Circuit’s recent Whiteside decision complicates the question of when information on the back of a product’s packaging can be used to clarify information on the front of the packaging. As a result, the bar for using...more

7/25/2024 / Beverage Manufacturers , Class Action , Food Labeling , Food Manufacturers , Labeling , Product Packaging

FDA Moves to End Use of Brominated Vegetable Oil in Food

Within a month of California becoming the first state in the nation to ban manufacturing with, selling, or distributing food items that contain brominated vegetable oil (BVO), FDA has proposed to revoke the regulation...more

11/9/2023 / California , Food and Drug Administration (FDA) , Food Manufacturers , GRAS , State Bans , Supply Chain , Toxic Chemicals

The Ninth Circuit Declares that Ambiguity can be Cured with Back Label

False advertising and labeling consumer class actions filed against consumer packaged goods companies have surged in the last few years, with more than 300 new cases filed each year since 2021. More than a quarter of these...more

7/14/2023 / Ambiguous , Class Action , False Advertising , Labeling , Product Labels , Product Packaging , Putative Class Actions

[Webinar] Careful What You Say: The Latest in False Advertising Litigation - July 25th, 10:00 am - 11:00 am PT

This presentation will cover the newest trends in false advertising cases, including product-labeling claims, ESG claims, statutory damage threats and more....more

6/26/2023 / Advertising , Continuing Legal Education , Environmental Social & Governance (ESG) , False Advertising , Product Labels , Statutory Damages , Webinars

New California Bill Seeks to Eliminate Certain Food Additives

Candy and sports drink aisles in California grocery stores could look very different if AB418 is passed into law. The California Assembly has proposed amending the state’s Health and Safety Code to prevent the manufacture,...more

4/12/2023 / California , Food and Drug Administration (FDA) , Food Manufacturers

“Dietary Guidance Statements” in Food Labeling: What You Need to Know About FDA’s Latest Draft Guidance for the Food Industry

On March 24, 2023, FDA issued its draft guidance for industry regarding the use of “Dietary Guidance Statements” on food labeling. FDA defines “Dietary Guidance Statements” as voluntary labeling statements, images, or words...more

4/12/2023 / Dietary Supplements , Food and Drug Administration (FDA) , Food Labeling , Food Manufacturers

California’s Toxic-Free Cosmetics Act Bans 24 Ingredients From Cosmetic Products

Effective January 1, 2025, a new California law will prohibit 24 ingredients from use in cosmetic products. California’s Toxic-Free Cosmetics Act [Assembly Bill (“AB”) 2762] was signed into law by Governor Gavin Newsom on...more

3/22/2023 / California , Chemicals , Consumer Product Companies , Consumer Product Safety Act (CPSA) , Cosmetics , Governor Newsom , New Legislation , Product Labels , Public Health , State Legislatures , Toxic Chemicals

Comment Period for “Healthy” Regulations Extended; But Consumer Class Actions Targeting “Health Halos” May Continue

The U.S. Food and Drug Administration (FDA) has extended the comment period for its proposed new “healthy” regulations for food packaging. The new deadline for comments is February 16, 2023. The 50-day extension follows...more

12/22/2022 / Comment Period , Draft Guidance , Food and Drug Administration (FDA) , Nutrition Facts Labels , Product Identifiers , Product Packaging , Proposed Regulation

Sow What Now?: Cal. Hispanic Chambers of Commerce et. al. v. Ross et. al., The U.S. Supreme Court, and California’s Proposition 12

If you are in the business of buying or selling pork-based products, then you have probably heard of California’s Proposition 12. As it pertains to pork, the law requires that pig confinement systems are large enough to...more

4/19/2022 / Appeals , CA Supreme Court , California Department of Food and Agriculture (CDFA) , CDPH , Enforcement , Good Faith , SCOTUS

FDA Boosts Protein Preemption Defense

Recent FDA guidance for determining and declaring the protein grams in a serving has helped muscle a class action out of federal court. FDA’s guidance clarifies that protein nutrient content claims under 21 CFR 101.9(c)(7)...more

2/17/2022 / Beverage Manufacturers , Class Action , Consumers , Disclosure , False Advertising , Food and Drug Administration (FDA) , Food Labeling , Food Manufacturers , Motion to Dismiss , Unfair Competition Law (UCL)

Are Flavor Cases Fizzling? Two More Courts Grant Motions to Dismiss

Since 2019, a staggering number of “flavor” lawsuits have been filed, with dozens of putative class actions filed in a single month and more than 100 in 2021 alone. While some lawyers appear to have an insatiable appetite for...more

11/16/2021 / Advertising , Beverage Manufacturers , Class Action , Food Labeling , Food Manufacturers , Misrepresentation , Putative Class Actions

It’s Not Pop Secret, Ninth Circuit Affirms that Plaintiff Didn’t Have a Leg to Stand On

The Ninth Circuit’s recent decision in McGee v. S-L Snacks Nat’l,., confirms that nutrition fact panel and ingredient disclosures provide information that can be used to support a motion to dismiss and remain important tools...more

12/11/2020 / False Advertising , Food Labeling , Food Manufacturers , Injury-in-Fact , Motion to Dismiss , Nutrition Facts Labels

Avoiding Formation Challenges To Your Arbitration Clause With Consumers

In prior posts..., we raised questions that companies may want to ask when evaluating their arbitration clauses and making changes to them. In this third installment, we look at what companies should be doing to ensure that...more

7/22/2020 / Arbitration , Arbitration Agreements , Class Action , Required Documentation

Questions To Ask When Changing Your Arbitration Clause

In a prior post , we highlighted some questions that companies may want to ask when evaluating whether their arbitration clauses are enforceable. If changes need to be made to those clauses, then companies should consider...more

6/30/2020 / Applications , Arbitration , Arbitration Agreements , Class Action , Modification , Terms and Conditions

An Arbitration Clause Health Check

Arbitration clauses with class action waivers remain one of the most effective tools that consumer-facing companies can employ to fend off consumer class action litigation. Yet many companies stumble both in getting their...more

6/23/2020 / Arbitration , Arbitration Agreements , Class Action , Class Action Arbitration Waivers , Consumer Contracts , Mandatory Arbitration Clauses , Service Contracts

“Happy Cows” False Labeling Theory is Just “Half Baked”: Court Dismisses False Advertising Claims Against Ben & Jerry’s

The plaintiffs’ bar has continued to challenge sourcing and sustainability claims made by food manufacturers. In Ehlers v. Ben & Jerry’s Homemade Inc., 2020 U.S. Dist. LEXIS 80773 (D. Vt. May 7, 2020), however, the court...more

5/13/2020 / Ben & Jerry's , Class Action , False Advertising , Food Labeling , Motion to Dismiss

CBD Industry Beware: The False Labeling Class Action Has Arrived

Last week, in what may be the first of its kind, a putative class of Massachusetts consumers filed a false labeling class action complaint against Global Widget LLC, d/b/a Hemp Bombs (“Hemp Bombs”) (Ahumada v. Global Widget...more

10/1/2019 / Advertising , Cannabidiol (CBD) oil , Cannabis Products , Class Action , Corporate Counsel , Disgorgement , False Advertising , Hemp , Labeling , Marijuana , Marketing , Product Labels , Punitive Damages , Putative Class Actions , Refunds , Treble Damages

Spate of Recent False Advertising Class Actions Take On Animal Treatment Label Claims

In the last few months, a handful of class actions have been filed challenging label claims regarding the treatment of the animals providing the food item in question. This appears to be a new food litigation trend, as...more

8/20/2019 / Class Action , False Advertising , Farm Animals , Farms , Food Labeling , Food Manufacturers , Food Marketing , Misleading Impressions , Tyson Foods

Lack of Standing Dooms Organizational Plaintiffs’ False Advertising Claims; Such a Challenge Can Be Brought at Any Time

Challenges based on lack of standing can be brought at any time and, in Friends of the Earth v. Sanderson Farms, Inc., 2019 U.S. Dist. LEXIS 127964 (N.D. Cal. July 31, 2019), the court dismissed a putative class action for...more

8/6/2019 / Article III , Discovery , Dismissals , Evidence , False Advertising , Injury-in-Fact , Putative Class Actions , Standing , Subject Matter Jurisdiction

HIMSS19 Kicks-Off Addressing Leading Topics in Healthcare Information Technology

Healthcare Information and Management Systems Society (HIMSS) kicked-off its annual global conference this week in Orlando, Florida, addressing leading topics in healthcare information technology. Over 45,000 healthcare and...more

2/14/2019 / Artificial Intelligence , Blockchain , Distributed Ledger Technology (DLT) , Health Care Providers , Health Information Technologies , Professional Conferences , Technology Sector

Ninth Circuit Confirms Plaintiffs Are Not Required to Undermine Defendant’s Evidence to Withstand Summary Judgment in False...

The Ninth Circuit’s recent decision in Sonner v. Schwabe N. Am., Inc. et al., resolves a split among district courts evaluating the standard that applies to false labeling claims brought under California’s Unfair Competition...more

1/15/2019 / Admissible Evidence , Advertising , Class Action , Consumers Legal Remedies Act , Expert Testimony , False Advertising , Labeling , Preponderance of the Evidence , Product Labels , Putative Class Actions , Summary Judgment , Unfair Competition Law (UCL)

“I’ll Be Back;” Ninth Circuit Gives Arnold Schwarzenegger-Branded Supplement Purchasers Another Shot to Pursue UCL, FAL, CLRA and...

In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford...more

10/19/2018 / Advertising , CLRA , Dietary Supplements , Express Warranty , False Advertising , Federal Food Drug and Cosmetic Act (FFDCA) , Food and Drug Administration (FDA) , Misrepresentation , Preemption , Unfair Competition Law (UCL)

Are credits coupons? The Ninth Circuit Says Yes in Calculating Total Value of Class Action Settlements

Companies may be inclined to offer “coupons” or similar benefits to settle consumer class actions. While offering coupons is permissible, in In re Easysaver Rewards Litigation, No. 16-56307, 2018 U.S. App. LEXIS 28000 (9th...more

10/18/2018 / Appeals , Attorney's Fees , CAFA , Class Action , Class Members , Coupons , Fee Awards , Membership Agreements , Refunds , Settlement

Ninth Circuit Confirms that Class Action Plaintiffs Must Plausibly Establish Future Intent To Re-Purchase To Maintain Claims for...

The ruling in Lanovaz v. Twinings N. Am., Inc., 2018 U.S. App. LEXIS 15248 (9th Cir. June 6, 2018), settles what was arguably an open issue among district courts within the Ninth Circuit. A plaintiff must have an intent to...more

6/27/2018 / Advertising , Article III , Beverage Manufacturers , CLRA , False Advertising , Food and Drug Administration (FDA) , Injunctive Relief , Standing , Unfair Competition Law (UCL)

Abby Meyer

Sheppard Mullin Richter & Hampton LLP

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