In our February 12, 2014 post, entitled “Consumer Class Actions Trending From Attacking ‘All Natural’ to ‘Raw,’” we addressed whether claims challenging consumer product advertising as “all natural” were preempted in the absence of specific guidance from the FDA and the mixed results the argument has produced. In Ault v. J.M. Smucker Co. et al.
Are Sugary Drink Warnings Coming to California?
California isn’t exactly known as a business-friendly state. In some ways, the governor has tried to change that. He’ll have an interesting choice to make if a recently-passed senate bill reaches his desk. Last week, the State Senate Committee on Health passed a measure that would require health warning labels on beverages with added sugar,
California Proposes Enhanced Prop. 65 Warnings and Possible Online Disclosures – Dietary Supplements and Foods Specially Targeted
Prepared by James Mattesich, Justin Prochnow, Anthony Cortez and Greg Sperla.
The California Office of Environmental Health Hazard Assessment (OEHHA) announced on March 7, 2014 that it is considering implementation of the most significant changes to Proposition 65 regulations in more than two decades. 
Because OEHHA’s proposals are currently in the preliminary
National Survey Identifies Top Consumer Questions on GMOs
We frequently address issues relating to litigation over products advertised as “all natural” or containing genetically modified organisms, or GMOs. As interest in GMOs has grown (along with related litigation), an initiative known as GMO Answers has published new survey results identifying consumers’ top 10 questions about GMOs. GMO Answers is funded by the members of The Council for Biotechnology Information, which includes several major consumer products companies.
A global market research company conducted a random, national telephone survey of over 1,000 Americans, in which those surveyed were given a list of 23 questions, then asked: “The following are questions some people have asked about GMOs. Which of the following questions around the use of GMOs would you be most interested in having answered?”
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Another ‘Evaporated Cane Juice’ Class Action Proceeds as the FDA Solicits Comments on the Description
On March 7, 2014, my colleague Justin Prochnow posted The Name Game: FDA Revisits its 2009 Draft Guidance on ‘Evaporated Cane Juice,’ which addressed the FDA’s recent announcement that it is revisiting a 2009 draft guidance stating its position on the description “evaporated cane juice.” The 2009 draft guidance took the position that describing the ingredient as “juice” was misleading under the Food, Drug and Cosmetic Act. The FDA is now soliciting comments on the issue, which could affect how the Administration treats the description, which in turn could affect litigation against companies whose products contain the ingredient. As described more in Mr. Prochnow’s March 7 post, the 2009 draft guidance spawned numerous class actions against such companies. That litigation continues, including a putative class action against Wallaby Yogurt Co. that a federal judge on Thursday, March 13, 2014 allowed to proceed. The case is Morgan v. Wallaby Yogurt Co., Inc., 3:13-cv-00296 (N.D. Cal. 2013).
Continue Reading Another ‘Evaporated Cane Juice’ Class Action Proceeds as the FDA Solicits Comments on the Description
The Name Game: FDA Revisits its 2009 Draft Guidance on ‘Evaporated Cane Juice’
The FDA announced yesterday that it is revisiting a draft guidance issued in 2009 that generated a significant amount of class action litigation over the last year. In 2009, the FDA issued a draft guidance outlining its position regarding the use of “evaporated cane juice” to describe sweeteners derived from sugar cane syrup. In the draft guidance, the FDA indicates that describing the sweeteners as juice “fail[s] to reveal the basic nature of the food and its characterizing properties” and therefore considers the use of “evaporated cane juice” to be misleading under the Food, Drug and Cosmetic Act (the FDCA).
On Wednesday, the FDA indicated that it is reopening the comment period on its 2009 draft guidance to obtain additional data and information to better understand the basic nature and characterizing properties of the ingredient, the methods of producing it, and the differences between the ingredient and other sweeteners. The FDA is seeking comments regarding whether others agree with its determination that the term “evaporated cane juice” does not convey the basic nature of the ingredient. It is also interested in how “evaporated cane juice” compares to other sweeteners derived from sugar cane, such as raw sugar and cane sugar, that use “sugar” or “syrup” in their name.
Continue Reading The Name Game: FDA Revisits its 2009 Draft Guidance on ‘Evaporated Cane Juice’
Don’t Go Changing to Try and Please Me…
The FDA caused quite a stir this morning by announcing proposed updates to the Nutrition Facts and Supplement Facts information required for packaged foods and dietary supplements. These changes reflect the first significant changes in the 20 years since nutrition information was first required to be placed on labels in the form of a Nutrition Facts panel or Supplement Facts panel (changes to include trans fats information were initiated in 2006.) First Lady Michelle Obama and FDA Commissioner Margaret Hamburg, M.D. both trumpeted the updates as important changes that will allow consumers to make healthier food choices.
Continue Reading Don’t Go Changing to Try and Please Me…
Former Lance Armstrong Endorsement of Supplement Company FRS Doesn’t Support False Advertising Class Action, Court Rules
On February 25, 2014, the U.S. District Court for the Central District of California dismissed a putative class action against supplement maker The FRS Company and its former endorser, cyclist Lance Armstrong, in the case of Martin v. FRS Company, et al., Case No. CV-13-01456-BRO (MANx). The Plaintiffs, alleged purchasers of FRS products, claimed that Armstrong’s endorsement of FRS and certain FRS slogans like “Secret Weapon” misled consumers into believing that FRS products were “closely associated” with Armstrong’s “legendary” athletic achievements. Plaintiffs sued on behalf of a putative nationwide class and attempted to state claims for false advertising, unfair competition, violations of California’s Consumer Legal Remedies Act (CLRA) and breach of warranty. In a 22-page ruling, the Court rejected each of Plaintiffs’ theories and dismissed the case.
As to the false advertising, unfair competition and CLRA claims, the Court ruled that FRS’s slogans amounted to nothing more than non-actionable “puffery,” and that the claims did not meet the heightened pleading standards of Federal Rule of Civil Procedure 9(b), which applied because each claim sounded in alleged fraud.
Continue Reading Former Lance Armstrong Endorsement of Supplement Company FRS Doesn’t Support False Advertising Class Action, Court Rules
Hope for Consumer Products Companies Facing ‘Natural’ Class Actions
Greenberg Traurig Shareholder Ed Chansky highlights a recent decision dismissing consumer fraud claims alleging a personal care product was mislabeled as “all natural.” The key aspects of the decision were:
- “Natural” is a vague and ambiguous term without a single or universal definition.
- The plaintiffs’ proposed definition of “natural” as “existing in or produced by
Cautionary Tale – Modify Business Practices and on the Hook for Catalyst Fees
After being hit with a class action, one question consumer products companies often face is: should we modify our business practices in response to the suit? Sometimes it makes sense. Changing the challenged practice can, in some cases, help defeat class certification and may help limit liability. Others would argue that changing business practices in response to a lawsuit is an admission of culpability that could negatively impact how the judge and jury will view the case.
A recent decision provides an additional reason consumer products companies will want to carefully evaluate whether to change business practices after being sued in a class action. 
In Henderson v. J.M. Smucker Co., CV 10-4524-GHK VBKX, 2013 WL 3146774 (C.D. Cal. June 19, 2013), the plaintiff sued claiming that the defendant’s labels included misleading “health and wellness” claims on products that actually contained unhealthy amounts of high fructose corn syrup and trans fat. The court dismissed the case because the plaintiff had filed for bankruptcy and the trustee had settled her individual claim. But the plaintiff’s lawyers still moved for attorney’s fees under a “catalyst theory,” seeking more than $3 million on the ground that the defendant had changed its business practices in response to the suit (by removing the high fructose corn syrup and changing certain labels).
Continue Reading Cautionary Tale – Modify Business Practices and on the Hook for Catalyst Fees