The rapid spread of COVID-19 (also commonly referred to as “novel coronavirus”) has caused nations and organizations across the world to take emergency action in the interest of public health. Most companies are issuing statements advocating for consistent hygiene (handwashing and minimal face touching) aimed at containing the spread of the virus. Other companies are taking more aggressive action by instituting work from home policies and even travel bans.

The food industry is particularly susceptible to experiencing a duel impact from the global outbreak, both in terms of both domestic sales and supply chain disruptions. Many food manufacturers have foreign production facilities in China, Italy, and other locations where coronavirus has stalled the workforce, and in turn, the economies. And, because a timeline on a meaningful dissipation of the outbreak is so uncertain, manufacturers, distributors, and retailers must prepare to engage in significant deviations in their current approach, by considering diversions to alternative sourcing locations, and an increased focus on inventory management. For example, not surprisingly, grocery stores have seen a surge in demand for hand sanitizers, soaps, and other disinfectants, leaving many retails with empty shelves. Indeed, supply of these products is so scarce that recipes for “DIY” hand cleaners are being circulated by news and social media outlets.  Retailers that are able to meet that demand will benefit from increased foot traffic and overall sales.


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This month, the U.S. Department of Justice (DOJ) opened a criminal investigation into collusive behavior among some of the largest producers of Atlantic salmon.  This inquiry follows the DOJ’s June announcement of its separate investigation into the chicken industry.

Atlantic salmon producers implicated by the investigation include Grieg SeafoodSalMar, Leroy Seafood Group, and Mowi.  The launch of the U.S. inquiry comes on the heels of the European Commission’s (EC) announcement of an investigation into the Atlantic salmon industry following a series of raids at the facilities of several prominent producers. The EC stated it had “concerns that the inspected companies may have violated E.U. antitrust rules that prohibit cartels and restrictive business practices.”


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If you are a typical shopper, the last thing on your mind at the checkout counter is your printed credit card receipt.  As you juggle your grocery store bags, you might absentmindedly fold the receipt into your wallet, or crumble it up and drop it into the depths of your bag.

However, for more than a decade, printed credit card receipts have been the subject of considerable litigation all over the country.  The Fair and Accurate Credit Transactions Act (“FACTA”), enacted in 2003, prohibits retailers from printing “more than the last 5 digits of the credit card number or the expiration date” on a consumer’s receipt.  The potential penalty for a FACTA violation is harsh: the statute awards up to $1,000 damages per violation when the conduct is willful, making it an area ripe for class action lawsuits—with restaurants, grocery stores, and other food retailers being primary targets.


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Eighty-six years after the repeal of Prohibition, Bacardi USA and Winn-Dixie are facing a putative class action predicated on Florida Statute Section 572.455, a 150 year-old remnant of the temperance movement.  In Uri Marrache v. Bacardi USA, Inc., et al., Case No. 2019-023668-CA-01 (Miami-Dade Cir. Ct. Aug. 9, 2019), Plaintiff alleges that Bombay Sapphire gin, a Bacardi product sold at Winn-Dixie, is “adulterated” with grains of paradise in violation of Section 572.455 and Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).

Grains of paradise are the seeds of an African plant in the ginger family, known as Aframomum melegueta. They are ground and used as a spice akin to cardamom, with a citrusy black pepper taste.  Florida Statute Section 562.455 states that, “[w]hoever adulterates for the purpose of sale, any liquor, used or intended for drink with . . . grains of paradise. . . or any other substance which is poisonous or injurious to health, and whoever knowingly sells any liquor so adulterated shall be guilty of a felony of the third degree[.]”


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Eager to curb foodborne-illness outbreaks, retail giants like Walmart and Albertsons are turning to blockchain technology [1] to track exactly where their foods are coming from. Blockchain, as compared to the eye-straining, paper-heavy tracking systems before it, allows retailers to trace the supply-chain history for a single food item within seconds.

For example, in a test case using IBM’s blockchain technology, Walmart traced the supply chain for two off-the-shelf mangoes randomly taken from one of its stores. Using conventional source-checking methods, it took them 7 days to do so. Through blockchain, however, they were able to track the entire supply chain in 2.2 seconds!  As a former Walmart executive put it, blockchain “allows us to see the whole chain in seconds! We [could] take a jar of baby food and see where it was manufactured and trace back all the ingredients to the farms!” Before blockchain, that simply would not have been feasible.


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The active ingredient in popular weed killers, glyphosate, has gotten bad press lately.  Thousands of plaintiffs have alleged that exposure to it caused their cancers.  Jurors have responded by invoking punitive damages and awarding billion dollar verdicts.  These headline-grabbing results have been subsequently reduced by court on legal grounds.

Some advocacy groups are claiming that the chemical’s presence extends beyond weed killers.   For example, the Environmental Working Group recently conducted a study that purports to show traces of the chemical present in many Cheerios and Quaker brand products.  To no one’s surprise, civil lawsuits followed.


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What started out as a proposed merger between two of the largest packaged seafood manufacturers spawned a lengthy criminal investigation into antitrust violations in the tuna industry by the Department of Justice (DOJ) and multiple class and individual civil lawsuits. After four years of litigation, a major development in the class action lawsuits occurred– the Court certified three putative classes.

In 2015, the Department of Justice investigated a proposed merger between Thai Union Group P.C.L. (the parent company of Chicken of the Sea) and Bumble Bee Foods LLC. As the DOJ’s civil attorneys reviewed information related to the merger, they discovered materials that appeared to raise criminal concerns.[1]


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beefWhen it rains, it pours—and for the country’s largest protein producers, the downpour is coming in the form of high-profile antitrust lawsuits. Over the past few years, food giants like Tyson and JBS (majority owner of Pilgrim’s Pride) have been named as a defendant in price-fixing cases relating to chicken and pork. Now, Tyson, JBS and Cargill face claims asserted by both consumers and suppliers of beef. According to these new claims, the beef producers conspired to increase their profits by both decreasing the supply-side prices they paid and increasing the prices their customers paid.
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Dishing Out the Latest F&B Litigation Updates: Part 3

cranberry juiceHilsley v. Ocean Spray Cranberries, Inc., No. 17-cv-2335, 2018 WL 6245894 (S.D. Cal. Nov. 29, 2018)

The Skinny: Malic acid is a common food ingredient used for flavor and pH control. Because of its prevalence and varying uses, a flurry of class action cases were recently filed against companies that use malic acid while simultaneously claiming “no artificial flavors” exist in their product. In Hilsley, a California federal judge granted certification against Ocean Spray.
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Dishing Out the Latest F&B Litigation Updates: Part 2

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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