Photo of Robert Guite

Robert Guite

Subscribe to Robert Guite's Posts

Rob Guite is a partner in the Business Trial Practice Group and Managing Partner of the firm's San Francisco office.

Contact:Read more about Robert Guite

Since 2019, a staggering number of “flavor” lawsuits have been filed, with dozens of putative class actions filed in a single month and more than 100 in 2021 alone.  While some lawyers appear to have an insatiable appetite for filing these suits, courts appear to find them mostly unpalatable.  The complaints  allege that packaging on food and beverage items is false and misleading because the challenged products do not contain certain ingredients or because the flavor is achieved by using ingredients other than or in addition to what consumers “expect” to be the source of the flavor.  Manufacturers of plant and dairy milks, yogurts, ice creams, creamers, cereals, chips, cakes, cookies and brownies have faced such claims.  Vanilla, lime, butter, milk, strawberry, smoked, chocolate and fudge flavors have all been dragged into court.  All of this litigation begs the question – will the gluttonous plaintiff’s class action counsel ever be satiated?  It seems that, by and large, the federal courts are not swallowing the case theme.  Two back-to-back decisions from the Southern District of New York, Boswell v. Bimbo Bakeries USA, Inc. and Kamara v. Pepperidge Farm, Inc., chucked flavor claims on the basis that a reasonable consumer could not be misled by the product labels.  In Boswell, the court dismissed plaintiff’s claims that she was misled by the packaging on Entenmann’s “All Butter Loaf Cake.”  The district court noted that this was “the latest in a long string of putative class actions brought by the same lawyer” and identified six prior cases that had been dismissed.
Continue Reading Are Flavor Cases Fizzling? Two More Courts Grant Motions to Dismiss

This article was originally published on Food Navigator on January 13, 2021.

If your company sells any vanilla-flavored food or beverage product, then you are probably aware of the innumerable class action cases that have been filed over the last 18 months attacking these products – 67 cases by our count.  Here, we trace the history of this litigation and the outcomes achieved to date.
Continue Reading The Scoop on All that Vanilla Flavor Litigation

This article was originally posted in Food Manufacturing on January 6, 2021.

Despite the COVID-19 pandemic, the number of putative class actions targeting the food and beverage industry increased in 2020 and show no signs of slowing down in 2021. The number of class actions filed against beverage companies in New York increased while the number of cases filed in California decreased. While the Northern District of California, which had become known as the “food court” remained a popular jurisdiction for these suits, filings in New York outpaced those in California. The factual basis of the claims also continues to evolve. Early cases challenged the description of food and beverages as “all natural” when the products contained additives allegedly rendering the “all natural” representation false and misleading.
Continue Reading Food & Beverage Class Actions: What You Need to Know for 2021

The Ninth Circuit’s recent decision in McGee v. S-L Snacks Nat’l,., confirms that nutrition fact panel and ingredient disclosures provide information that can be used to support a motion to dismiss and remain important tools for defeating consumer class actions.
Continue Reading It’s Not Pop Secret, Ninth Circuit Affirms that Plaintiff Didn’t Have a Leg to Stand On

The plaintiffs’ bar has continued to challenge sourcing and sustainability claims made by food manufacturers.  In Ehlers v. Ben & Jerry’s Homemade Inc., 2020 U.S. Dist. LEXIS 80773 (D. Vt. May 7, 2020), however, the court dismissed such a challenge where the allegedly false statement was taken out of context and the plaintiff ignored the totality of the company’s representations.  “A plaintiff who alleges that he was deceived by an advertisement may not misquote or misleadingly excerpt the language of the advertisement in his pleadings and expect his action to survive a motion to dismiss.”  This case should help companies fend off similar claims in the future.
Continue Reading “Happy Cows” False Labeling Theory is Just “Half Baked”: Court Dismisses False Advertising Claims Against Ben & Jerry’s

Last week, in what may be the first of its kind, a putative class of Massachusetts consumers filed a false labeling class action complaint against Global Widget LLC, d/b/a Hemp Bombs (“Hemp Bombs”) (Ahumada v. Global Widget LLC, D. Mass. Case No. 1:19-cv-12005), challenging the labeling of numerous Hemp Bombs products, including gummies, lollipops, capsules, syrup, vape and pet products.
Continue Reading CBD Industry Beware: The False Labeling Class Action Has Arrived

Challenges based on lack of standing can be brought at any time and, in Friends of the Earth v. Sanderson Farms, Inc., 2019 U.S. Dist. LEXIS 127964 (N.D. Cal. July 31, 2019), the court dismissed a putative class action for lack of standing pursuant to Rule 12(h)(3) after Plaintiffs supplemented discovery responses and depositions were taken. Although it had earlier denied motions to dismiss brought pursuant to Rule 12(b)(6), the district court concluded that Plaintiffs failed to produce evidence in discovery to establish their injury in fact and, accordingly, lacked standing under Article III.  
Continue Reading Lack of Standing Dooms Organizational Plaintiffs’ False Advertising Claims; Such a Challenge Can Be Brought at Any Time

The Ninth Circuit’s recent decision in Sonner v. Schwabe N. Am., Inc. et al.,[1] resolves a split among district courts evaluating the standard that applies to false labeling claims brought under California’s Unfair Competition Law and Consumers Legal Remedies Act on summary judgment. The Ninth Circuit confirmed that plaintiffs can survive summary judgment by supplying a conflicting expert report, invalidating a line of cases that required plaintiff’s expert to also entirely undermine defendant’s expert.
Continue Reading Ninth Circuit Confirms Plaintiffs Are Not Required to Undermine Defendant’s Evidence to Withstand Summary Judgment in False Labeling Class Actions

Following the denial of a petition for rehearing en banc, over a spirited dissent, a Ninth Circuit panel issued its amended order on November 27, 2018 in Sali v. Corona Regional Medical Center, holding that evidence need not be admissible to be considered at the class certification stage. The panel held: “Inadmissibility alone is not a proper basis to reject evidence in support of class certification.” 
Continue Reading Ninth Circuit Panel Affirms Inadmissibility Alone is Not a Proper Basis to Reject Evidence in Support of Class Certification

In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford brought claims under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) Consumer Legal Remedies Act (“CLRA”) and for breach of express warranty. The district court dismissed these claims, finding them preempted by federal law. However, the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Durnford’s claims effectively reviving them, albeit on a narrower basis. Durnford v. MusclePharm Corp., No. 16-15374, __ F.3d __ (9th Cir. 2018), 2018 U.S. App. LEXIS 28771.
Continue Reading “I’ll Be Back;” Ninth Circuit Gives Arnold Schwarzenegger-Branded Supplement Purchasers Another Shot to Pursue UCL, FAL, CLRA and Warranty Claims