Advertising & Marketing

Food and Beverage Deception Cases Still Must Pass the “Are you Serious?” Test

coca colaBecerra v. The Coca-Cola Co., No. 17-cv-05916, 2018 WL 1070823 (N.D. Cal. Feb. 27, 2018)

The Skinny:  It is not Coca-Cola’s fault if you think Diet Coke should make you lose weight. In the highly litigious area of false advertising claims, this case reminds us that, first and foremost, zealous plaintiffs must remain reasonable in their assertions. The level of proof needed to demonstrate that a reasonable consumer may be misled by a product’s advertising demands more than just merely stating so. See Manuel v. Pepsi-Cola Co. and Excevarria v. Dr. Pepper Snapple Grp. for very similar rulings.
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In the Third and Eleventh Circuits, Ascertainability Continues to be a Major Certification Hurdle

dominoIn Re: Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 2:11-cv-07382, 2018 WL 497071 (D.N.J. Jan. 22, 2018)

The Skinny:  This is the latest food and beverage case from within the Third Circuit to solidify Carrera’s heightened ascertainability standard. The standard is particularly difficult to meet where the plaintiffs’ proposed plan for ascertaining the class cannot be credibly tied to information or documentation that is demonstrably (and not just theoretically) available.

The Meat and Potatoes: Plaintiffs brought claims against Tropicana for the alleged mislabeling and misbranding of Tropicana’s orange juice product, Tropicana Pure Premium (“TPP”). Plaintiffs alleged that Tropicana’s marketing of the product as “pure, natural and fresh from the grove” was false and deceptive because flavoring is allegedly added.

In addition to finding a lack of predominance, Judge William J. Martini of the U.S. District Court for the District of New Jersey denied class certification on ascertainability grounds. The Court rejected the plaintiffs’ expert’s proposal to create a computer program to identify class members based on retailer loyalty card numbers and information submitted by consumers.  The Court determined that the vast majority of relevant retailers lacked the ability to compile the very data plaintiffs’ expert claimed would be required.
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beverage lawMillerCoors is suing Bud Light for its unlike-them-we-don’t-use-corn-syrup campaign. (You probably saw the ad’s launch during this year’s Super Bowl, but, just in case you didn’t, go ahead and click here.) Hitting back, MillerCoors filed a lawsuit against Anhauser-Busch last Thursday, asking a federal court to immediately end Bud Light’s campaign (or, better put, “nip it in the Bud”), and make it pay MillerCoors back for whatever it earned from the no-corn-syrup campaign, as well as MillerCoors’ attorney’s fees, too.

This case highlights yet another high-profile example of how food-and-beverage makers, among others, can turn to the Lanham Act for seeking potent remedies against foul-playing competitors. And, although the Lanham Act is often viewed as mainly (if not exclusively) for trademark actions, this case also reminds us that the Lanham Act can do far more.
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LabelThe saying goes, knowledge equals power. For plaintiffs asserting claims for injunctive relief on behalf of putative classes, however, the Mott’s Apple Juice case demonstrates just the opposite.

The Northern District of California’s recent order denying reconsideration of its summary judgment ruling in Rahman v. Mott’s LLP, 2018 WL 4585024 (N.D. Cal. Sept. 25, 2018) holds that a plaintiff cannot “plausibly claim” that he will suffer future harm if he is now “fully aware” of what the allegedly deceptive statement means.
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Vita Coco

On September 26, 2018, the Honorable Judge Robert N. Scola entered an Order denying class certification in a consumer deceptive advertising case. Plaintiffs claimed that the use of the phrase “born in brazil” on containers of Vita Coco, the leading brand of coconut water, caused them to believe that Vita Coco was manufactured in or sourced exclusively from Brazil, when it was not. Plaintiffs sought to certify injunctive classes under FRCP Rule 23(b)(2) and damages classes under Rule 23(b)(3).

The Court denied class certification for two primary reasons. First, the Court found that the named plaintiffs lacked standing to represent the injunctive classes where there was no real and immediate threat of future injury. The Court observed that any alleged future harm suffered by the plaintiffs was self-inflicted:
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Authored by Lori Lustrin and Anthony Sirven.

PomFood and beverage manufacturers are well accustomed to heeding counsel’s advice of dotting their “I’s” and crossing their “T’s” to ensure their product labels comply with applicable governmental regulations. But since the United States Supreme Court’s pronouncement in Pom Wonderful LLC v. Coca-Cola Co., food and beverage makers now face a heightened level of scrutiny from what may be their most formidable challengers—direct competitors.

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YogurtPodpeskar v. Dannon Co., Inc., 16-cv-8478 (KBF) (S.D.N.Y., Dec. 3, 2017)

The Southern District of New York joins the list of federal courts that have recently rejected potential class action suits brought against restaurant and food manufacturers for the alleged false advertisement of their food products as “GMO-free.
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Chips Have you ever taken a sip of your Grande Starbucks latte and thought to yourself with disgust, “I can’t believe that barista topped off my latte with milk foam!” Or polished off an eight-piece bucket of Kentucky Fried Chicken, and found yourself staring longingly into the bottom of the greasy container, wishing for more?

If your answer to these questions is no, then you are probably a “reasonable consumer,” according to recent court rulings in “slack-fill” class action lawsuits.
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Veggie BurgerYou clearly know the difference between the meat and vegetables on your plate, right? As society has redefined its views on meat and protein intake, however, you may not be so sure.

Plant based proteins have quickly become the food industry’s most popular new addition. With protein now being processed from non-animal sources, the word “meat” is now at the center of a hotly contested legal debate.  Given the ripeness for litigation, the U.S. Department of Agriculture
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