Food Litigation Is Growing

• Pages: 26-27
• Date: 01 July 2021
• Author: Daniel S. Wittenberg
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

he food and beverage indust ry continues to face

increasing scr utiny over labeling and advertising.

Despite the pandem ic, the number of class actions tar-

geting the food a nd beverage industry increased la st

year and shows no signs of slowi ng down in 2021.

By the Numbers

The top ve categories of food a nd beverage class action

lings were fal se labeling, followed by c ases challenging

products avored with van illa, “all natural” cases, plac e of

origin cases , and slack-ll cases. In 2020, New York had

the most class act ion cases led. C alifornia came in second,

with Missou ri and Washington, D.C. , a distant third and

fourth. The nu mber of class actions led against b everage

companies in New York increas ed while the number of c ases

led in California decreased.

Though class act ions increased, the overall number of

food sector case s were at a ve-year low with approximately

80,000 c ases led nationa lly in 2020. Accounting for all

these lin gs, the top three ju risdictions for food law cases

were the state court s in Wisconsin and Californ ia, with the

Californi a federal courts c oming in third.

Nature of Claims

Most food and beverage cla ims are concentrated on food

labeling, includ ing whether identi ed ingredients or a-

vors are arti cial (i.e., vanil la). Claims have also be en made

about functions of ce rtain ing redients, as well as about

aspects of the supply cha in for those ingredients. Lawsuit s

continue to contest the or igin of the ingre dients (e.g., Kona

coffee, Austra lian beer, and Italian olive oil), the use of

sweeteners (i.e., exces s sugar or the presenc e of artici al

sweeteners), the number of ser vings in packaged goods, and

slack-ll claims . Baby food safety litigation and plant-bas ed

products also entered t he fray.

Of the labeling ca ses, some have centered on the accu-

racy of the amount of a nutrient or i ngredient in a product

and claims th at a product was not made in the ma nner indi-

cated. These c ases also focus ed on reference to ingredients

as “real” when they were purpor tedly processed, as well as

misstating t he number of servings per package.

Vanilla continues to be a s talwart in t he class action

arena. These c ases typically assert th at a “reasonable con-

sumer” anticipates t hat a product labeled as bei ng avored

with vanill a will not get its avor from sou rces other than

from pure vanill a or vanilla ex tract.

For several years, t he Food and Drug Adm inistration

(FDA) suggested a new de nition of “natural” in human

food labeling would be for thcoming, but it has yet to issue a

formal den ition. For that reason, c onsumer challenges are

likely to continue in the “nat ural” category. Cases led last

year generally al leged that a product labele d “natural” con-

tained some ing redient that was articia l.

Place of origin clai ms generally allege that terms and

descriptions on produc ts mislead consumers into believi ng

that a product is made in a pa rticular locale or has ing redi-

ents from a speci c place. Some of these cases allege th at the

product name itsel f is misleading. I n this regard, courts gen-

Food Litigation Is Growing

By Daniel S. Witte nberg, Litigation N ews Associate Editor

© Getty Image s

26 | SECTION OF LITIGATIO N

BUSINESS OF LAW