Perkins Coie is pleased to present its fourth annual Food Litigation Year in Review, summarizing important developments in consumer litigation affecting the food and beverage industry. Filings against the food and beverage industry reached new highs once again in 2019, with 177 putative class action complaints filed in courts nationwide—exceeding last year’s record-breaking total. Plaintiffs’ lawyers continue to target the industry, relying on new theories and claims, and spurred on by some plaintiff-friendly rulings that have allowed classes to proceed to certification based on damages models once considered flawed or incomplete. The upward filing trends in the class action landscape are mirrored in other industries and in the prosecution of related claims: putative class actions against the pet food and dietary supplement industries were on the rise in 2019, as were Proposition 65 warning notices.
Despite these trends, 2019 saw several important rulings for companies defending such lawsuits. The “reasonable consumer” defense continues to serve as an important checkpoint in food and beverage lawsuits. Both the Second and Ninth Circuits issued opinions affirming that reasonable consumers have common-sense notions about food and beverage products—like the fact that soda labeled “diet” doesn’t cause weight loss without other dietary changes. Likewise, in the supplement space, courts have reaffirmed the vitality of preemption defenses to complaints challenging allegedly misleading structure/function claims. And in the pet food space, just as courts have done in similar lawsuits against food companies, courts rejected the notion that a “natural” claim on pet food necessarily communicates that the food is completely free of trace pesticides down to the molecular level. Despite these victories, our outlook for 2020 is similar to the trend in 2019: a continued targeting of these industries by the plaintiffs’ bar.
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