food-courtCross-posted at WLF’s contributor site

Last July in a Legal Pulse post entitled “Who’s Filling the Food Court with Lawsuits: Consumers or Lawyers?,” we noted the extensive involvement in food “mislabeling” class actions of a consortium of plaintiffs’ lawyers, some of whom had been active in tobacco litigation. Led by the law firm Pratt & Associates, the group filed 24 class actions in the Northern District of California in less than two months in 2012. We’ve now identified a total of 34 cases the consortium has brought to the Food Court.

In that post we offered a chart tracking the current status of the consortium’s cases.  Our updated chart is available here. Kindly let us know if we missed any.

Northern District of California judges have been busy this month on the group’s cases, issuing four substantive rulings.

Gustavson v. Wrigley Sales Co. Judge Koh’s order in this case is the only complete victory of the four for plaintiffs or defendants. After rejecting Wrigley’s motion to dismiss on preemption grounds last September, Judge Koh reversed herself on that issue in this January 7 decision. What changed? Wrigley cited FDA commentary on a 1993 nutrient content labeling rule which supported the company’s use of the term “sugar free” on its gum. The plaintiff’s suit would require placement of certain FDA-required qualifying language on the gum label in a manner different from what FDA rules allow, so Judge Koh held the claim expressly preempted. She dismissed Gustavson’s claims with prejudice.

Bruton v. Gerber Products Co. Judge Koh is also presiding over this suit, which alleges that Gerber made unlawful nutrient content and sugar-related claims on 15 products Bruton purchased, and dozens of other products supposedly bought by unnamed class members. Gerber argued in its motion that Bruton did not have standing to advance claims based on products she did not purchase. In other Northern District food mislabeling cases, named plaintiffs have been allowed to sue over unpurchased products “as long as the products and alleged misrepresentations are substantially similar.” Judge Koh found that Bruton did not explain how the dozens of unpurchased products are substantially similar to the ones she bought, and thus dismissed those claims with prejudice.

While we are pleased those claims were thrown out, we find the Food Court’s prevailing jurisprudence on this issue rather unpalatable. Plaintiffs can’t be injured by products they did not purchase, and without an injury, plaintiffs plainly lack standing to sue. At least two other Northern District decisions referenced by Judge Koh (Granfield v. NVIDIA and Carrea v. Dreyer’s Grand Ice Cream) agreed with this conclusion, as did a Florida ruling in a case we examined here last year, Reilly v. Amy’s Kitchen.

Judge Koh also ruled that Bruton had met her pleading burden for claims based on products she actually purchased, and that the suit could proceed as a prospective nationwide class action. Her conclusion on the nationwide class is directly at odds with Judge Conti’s October 24, 2013 decision in Wilson v. Frito-Lay NA. There, Judge Conti decided he need not wait until the class certification stage to rule that California did not intend for its consumer protection laws to apply extra territorially.

Gitson v. Clover Stornetta Farms. We wrote about this complaint last year after noticing that the plaintiff cited a 2001 letter from FDA to WLF as authority for the proposition that statements on the company’s website constituted “labeling.” The suit’s claims involve the use of the terms “evaporated cane juice” (ECJ) and “natural” on yogurt labels. After finding that Gitson had standing to pursue claims related to ECJ but not “natural” (due to inadequate pleading of reliance), Magistrate Judge Laporte considered whether Gitson could pursue claims for unpurchased products. Under the test we described above, Judge Laporte held that the unpurchased yogurts were substantially similar to the yogurt Ms. Gitson purchased, so those claims could proceed. She also ruled that federal law neither expressly nor impliedly preempted Gitson’s ECJ claims. Finally, while she decided that the doctrine of primary jurisdiction prevented Gitson’s claims based on Standard of Identity for yogurt from proceeding, the doctrine did not prevent the ECJ claims from going forward.

Lanovaz v. Twinings NA, Inc. The plaintiff in this case claims to have relied on Twinings’ allegedly unlawful health and nutrient content claims, such as “natural source of antioxidants,” when making tea purchasing decisions. In his January 6 decision, Judge Whyte granted in part and denied in part Twinings’ motion for summary judgment. While the judge had serious doubts about Lanovaz’s ability to ultimately prove reliance, he would not rule on that issue at the current stage in the suit. The judge also found that Lanovaz had standing to sue for economic harm and injunctive relief and that federal law did not preempt her nutrient content allegations. He did, however, grant summary judgment on Lanovaz’s charges that Twinings made disease-related health claims, finding that it made no such claims.

Take-aways. The developments in these four cases are quite consistent with past Food Court rulings on motions to dismiss and motions for summary judgment. While the judges pared back the claims in the latter three cases, they allowed certain claims to go forward or gave the plaintiffs another bite at the apple. It’s promising to see Judge Koh display some exasperation with the plaintiffs in Gustavson and Bruton over their refusal or inability to support certain claims despite her past insistence that they do so, which led to dismissal with prejudice. But on the whole, the consortium of plaintiffs’ lawyers has to be pleased that 3 of the 4 cases ruled on this month survived and that overall 32 of their 34 cases in the Food Court will force food and beverage defendants to keep investing time and money on legal defense this year.