PC Food Litigation Index: August 2019

As of August 2019, overall food litigation filings are on pace with those of last year. California and New York remain the two most popular jurisdictions for food litigation matters.  While California filings in 2019 are approximately the same as this time last year, we note that about 40% of total California filings occurred between September and December 2018.  So far this year, we have also noticed an uptick in filings in the District of Columbia.  While filings in the District were a small part of the overall total in 2018, food-related filings in this jurisdiction are currently exceeding those of larger jurisdictions, including Florida, Illinois, and Missouri. Regarding types of matters, false labeling cases have far outstripped those of other categories.  Compared with August 2018, food-related false advertising claims have increased nearly 60%.  Filings for "all natural" and slack-fill claims have fallen compared to August 2018, with fewer than 20 new cases filed in 2019 from both categories combined.  Even so, we are tracking a number of important trends regarding "all natural" claims, including several cases alleging that the presence of malic acid or other materials render product labeling regarding "naturally flavored" false or misleading.  Among the notable rulings from August 2019 was that of Truxel et al. v. General Mills Inc. from the Northern District of California.  In that case, plaintiffs challenged the manufacturer's health and wellness claims regarding its cereal products.  After multiple years of litigation, the court dismissed the claims finding that reasonable consumers were not plausibly misled as the product's labeling had provided consumers with "all truthful and required objective facts about its products" and fully disclosed the actual ingredients.  With the appropriate disclosures made, the court found that it was up to the plaintiffs, "as reasonable consumers, to come to their own conclusions about whether or not the sugar content was healthy for them." Defendants in the Truxel litigation were represented by the Perkins Coie food litigation team. Annual Filing Trends Filings by Jurisdiction Filings by Category