False advertising and labeling consumer class actions filed against consumer packaged goods companies have surged in the last few years, with more than 300 new cases filed each year since 2021. More than a quarter of these have been filed in California federal courts. A key question in many of these cases is what information the reasonable consumer would read and rely on from the product packaging. In June 2023, the Ninth Circuit weighed in on this topic, providing helpful guidance to companies.
Recent FDA guidance for determining and declaring the protein grams in a serving has helped muscle a class action out of federal court. …
Continue Reading FDA Boosts Protein Preemption Defense
Deciding an issue of first impression, the California Court of Appeal issued a writ of mandate confirming that there is only one standard for the admissibility of expert opinion in California, and that standard applies when considering a motion for class certification. Apple, Inc. v. Superior Court of San Diego County, 2018 Cal. App. LEXIS 69 (Cal. Ct. App. Jan. 29, 2018). Accordingly, the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order granting Plaintiffs’ motion for class certification for reconsideration in light of the standards for the admission of expert testimony set forth in Sargon Enters., Inc. v. Univ. of S. Cal., 55 Cal.4th 747 (2012).
Continue Reading California Court of Appeal Confirms that There is Only One Standard for the Admission of Expert Testimony and that Expert Opinion Must Be Admissible to be Considered on a Motion for Class Certification
In Brazil v. Dole, No. 14-17480 (9th Cir. Sept. 30, 2016), the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part three different orders issued by the U.S. District Court for the Northern District of California. In doing so, the Ninth Circuit (1) confirmed that in order to state a false advertising claim under the unlawful prong of California’s Unfair Competition law, a plaintiff must allege that he relied on the purportedly misleading statements, (2) clarified what types of evidence were sufficient to create an issue of material fact sufficient to defeat summary judgment based on the reasonable consumer standard, and (3) confirmed that, in order to certify a damages class under Rule 23(b)(3), a plaintiff must present a damages model that provides a method of calculating damages using proof common to the class.
Continue Reading Ninth Circuit Confirms Brazil v. Dole Decertification Due to Faulty Damages Model
Proposition 37, the California Right to Know Genetically Engineered Food Act (“Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO “processed food” may not on its label, store signage, advertising or promotional materials state or imply that the food is “natural” or words of similar import.
Ballot materials prepared by the Legislative Analyst’s Office (LAO) state that Prop 37 could be interpreted to mean “processed food” is subject to the prohibition against “natural” labels, even if it is not produced with genetic engineering. In our view, this is not the correct interpretation of Prop. 37.…
In Davis v. HSBC Bank Nevada, N.A., No. 10-56488, 2012 WL 3804370 (9th Cir. Aug. 31, 2012), the Ninth Circuit affirmed the dismissal of claims for (1) false advertising in violation of the California Business and Professions Code § 17500, et seq. (“FAL”); (2) fraudulent concealment; (3) “unlawful” business practices in violations of California Business and Professions Code § 17200, et seq. (“UCL”); and (4) “unfair” and “fraudulent” business practices in violation of the UCL, at the pleading stage.
Continue Reading Unreasonable Reliance: Ninth Circuit Affirms Dismissal of FAL, Fraud and UCL Claims at the Pleading Stage