PC Food Litigation Index: July 2018

Each month we will be sharing the PC Food Litigation Index, a summary of latest class action filings in the food and beverage industry. This data is compiled by Perkins Coie based on a review of dockets from courts nationwide. Food litigation filings in July were in line with the year's overall trend, pacing slightly ahead of 2017 numbers. The general false fact category of filings remains the largest, with several new filings in July. In Moore v. Trader Joe's Company, for example, the plaintiff argues that the defendant's manuka honey product, sold either as "100% New Zealand Manuka Honey" or "New Zealand Manuka Honey," is falsely and misleadingly labeled, testing confirming that the product is approximately three-fifths Manuka Honey. Also in the false fact category this month was a challenge to the marketing and labeling of Ben and Jerry's ice cream, in particular, claims that it is made from the milk of "happy cows" in "caring dairies." The plaintiff's suit contends that the milk actually derives "from cows raised in regular factory-style, mass-production dairy operations." A challenge to the labeling of Kerrygold butter similarly focuses on the diet and treatment of the cows from which the butter derives, the plaintiff claiming that the "grass-fed" label is misleading because the cows sometimes eat "genetically modified and other grains – not grass." Food labeling lawsuits, like this one, that emphasize the living conditions of animals have become more common in recent years. Consistent with last year's filing pace, "natural" labels were again front and center among food litigation filings this month, with several lawsuits citing the presence of synthetic chemicals in food and beverage products carrying these labels. Lawsuits implicating "natural" or "all natural" food labels continue to focus their claims on the presence of the synthetic biocide glyphosate, the presence of which, plaintiffs argue, renders "natural" claims untruthful. In Axon v. Florida's Natural Growers, the plaintiff argues that "glyphosate levels of 5.11 nanograms per milliliter" are inconsistent with the "natural" label on defendant's various orange juice products. Another lawsuit against Trader Joe's alleges that its sour gummy snacks falsely claim they consist of only natural ingredients and are made without artificial ingredients, when they contain malic acid, an ingredient at the center of many recent food labeling cases. Annual Filing Trends Filings by Jurisdiction Filings by Category