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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plant based proteinCapitalizing on an increasingly health and environmentally conscious era, plant-based meat substitute companies are positioning themselves as the future of protein. On May 2, 2019, Beyond Meat became the first plant-based product company to go public. Its stock skyrocketed to become the highest performing first-day public offering in nearly two decades. Impossible Foods is also performing well. While the company is in no rush to go public, they just secured $300 million in their latest funding round.

In light of these recent successes, the meat industry is grappling with how to address the new food phenomenon. With the long-term viability of the alternative meat market yet to be seen, traditional meat companies are taking both an offensive and defensive approach.
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water

Water: two parts hydrogen, one part oxygen. It seems simple enough, but for companies selling bottled water, liability lurks below the surface. According to a recent lawsuit, consumers care not only about what is in their water; they care about from where it comes from. Perhaps more importantly, according to the plaintiffs—so do regulators.

In Patane v. Nestle Waters N. Am. Inc., 314 F.Supp.3d 375 (D.Conn. 2018), Nestle faces allegations that it made millions of dollars by fraudulently labeling Poland Spring Water. The complaint, filed by plaintiffs from nine different states, claims that Nestle bilked consumers out of millions by selling tap water under the guise of spring water.
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Dishing Out the Latest F&B Litigation Updates: Part 4

Doss v. General Mills, No. 18-cv-61924 (S.D. Fla Aug.17, 2018)

The Skinny:  Last fall, a jury in California awarded $289 million to a plaintiff who alleged he contracted cancer from the glyphosate in Monsanto’s Roundup weed killer.  Now that a bellwether trail has concluded with a substantial plaintiff win, attention shifts to the Southern District of Florida where a case is proceeding against General Mills alleging that Cheerios contains levels of the same chemical. Also see Paracha v. General Mills Inc., No. 2:18-cv-07659 for a similar case filed in a different jurisdiction.
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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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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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almond milkAt a recent Politico event, Federal Drug Administration (FDA) Commissioner Scott Gottlieb signaled the agency’s shift to a new era of more stringent enforcement in the dairy business. Gottlieb did so with an amusing quote: “An almond doesn’t lactate, I will confess.”

Gottlieb’s curious combination of words was referring to the federal regulation that defines what may be legally marketed as “milk.” Section 131.110 of the Code of Federal Regulations states that “milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” Gottlieb’s comment reflected that since almonds do not lactate, the beverage currently known by consumers as “almond milk” does not strictly fall under the definition of milk.
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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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