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Despite the Pandemic Food Related False Advertising Lawsuits Still Continue To Be Filed

False advertising lawsuits are now focusing on specific flavor claims on labels of food and beverages. Frito-Lay, for example, was sued in California federal court. The company’s “Tostito’s Hint of Lime” tortilla chips falsely implied that natural lime was a flavoring ingredient. Consumers were also misled by misrepresentations of lime on product packaging. Kellogg, Hershey and Bimbo Bakeries were all sued for “fudge” they made with vegetable oil substitutes. This is alleged to be the traditional method of making fudge.

In these cases involving misleading or false flavoring ingredients, the plaintiff usually attempts to represent consumers and claims they were charged more for products because of the particular ingredient. The plaintiff must generally also claim that they wouldn’t have bought the product if they knew that the ingredient was missing.

Many consumer claims are brought under state consumer protection statutes, such as the California Consumer Legal Remedies Act. Unfair Competition Law and False Advertising Law. Illinois Consumer Fraud and Deceptive Business Practices Act. California, New York and Florida account for three quarters of all federal food class actions. To assert that the labeling is misleading or false, plaintiffs can also use the Federal Food, Drug, and Cosmetic Act federal standard.

The reasonable customer test is the most common method by which the court will evaluate an advertising claim. This is a common-sense test that identifies what a customer can reasonably expect from an advertisement. Even though the advertisement was misleading, courts have been open to dismissing claims. The Ninth Circuit recently ruled that reasonable consumers wouldn’t interpret labels as promising “something that is impossible to locate” when considering a claim for “100% New Zealand Manuka Honey”. Moore v. Trader Joe’s Co. 4 F.4th 874 882-83 (9th Circuit). 2021). The Eastern District of New York ruled that a label that stated “Vanilla Ice cream” only contained vanilla beans, rather than assuming that vanilla would be its distinguishing flavor. Garadi v. Mars Wrigley Confectionery US, 2021 WL 2843137, *3-4 (E.D.N.Y. July 6, 2002. July 6, 2021). Ill. Aug. 25, 2021).

Many lawsuits continue to be filed based on claims of ‘natural ingredients’ (Forsher, v. The J.M. Smucker Company, 2020 WL 1531160 (N.D. Ohio Mar. 31, 2020), and ‘free from’ ingredients (VanLaningham, Campbell Soup Co. 2020 WL 5893523. (S.D. Ill. October 5, 2020), and’real ingredients (Beers, v. Mars Wrigley Confectionary US LLC, 7:21cv-00002 [S.D.N.Y.]. January 1, 2002. Food-related class actions can pose unique and complicated legal challenges, particularly in terms of jurisdiction, venue and standing, preemption and materiality, and reliance both at the pleading stage and at the class certification stage.