Food and Beverage Class Actions: False Advertising, Deceptive Labels, and Reasonable Consumer Standard

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, July 1, 2021

Recorded event now available

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Course Materials

This CLE course will address class actions alleging false advertising and deceptive/ambiguous labeling claims for food and beverages and the recent trend to focus on entire industries, not just specific products. The program will explore the "ambiguity rule" and whether an allegedly deceptive statement, claim, or other feature on the front label will be deemed "not deceptive" or not ambiguous as a matter of law if the statement, claim, or another feature is clarified by an accurate ingredient list or disclaimer on the back. The speakers will review the reasonable consumer standard and how the element of "context" affects the analysis at different stages of the case.

Description

The torrent of food labeling class actions has not slowed. Hundreds of active cases are pending in the federal courts, with more in state courts. Defendants include major food companies to small, family-owned businesses. A gauntlet of federal laws, agency regulations (FDA, FTC, U.S. Department of Agriculture), and state consumer protection laws apply.

To prevail on a claim for deceptive advertising/labeling, plaintiffs must plead and prove that a subject statement or label is likely to deceive reasonable consumers. The analysis requires considering all the information available to the consumer and the context in which that information is being provided. Defendants often move for summary judgment citing the so-called "ambiguity rule": ambiguity created by front label statements or claims is "not deceptive" as a matter of law if clarified by an accurate ingredient list.

Frequently successful at the trial level, this argument has seen less acceptance in the circuit courts, and classes have been certified and allowed to move forward. However, some defendants have been successful in having certain claims dismissed. Plaintiff and defense counsel must consider preemption, primary jurisdiction, plausibility, and standing to pursue claims or obtain a dismissal.

Listen as this panel discusses best strategies for either obtaining or avoiding dismissal of false labeling claims, current trends, and recent case law.

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Outline

  1. Food and beverage class actions
    1. False advertising
    2. Mislabeling
  2. Reasonable consumer standard
  3. Resolving ambiguous claims
  4. Strategies at the certification stage
  5. Strategies at trial

Benefits

The panel will review these and other key issues:

  • What is the effect of Bell v. Publix Super Markets Inc.?
  • What defense approaches can prevail at certification and trial in food and beverage class claims?
  • What are the latest legislative and case law developments impacting food and beverage claims?

Faculty

Kelman, Leah
Leah Kelman
Partner
Herrick Feinstein

Ms. Kelman concentrates her practice on complex commercial litigation, including class action defense, title insurance,...  |  Read More

Wicklund, P. Renée
P. Renée Wicklund
Co-Founder
Richman Law & Policy

Ms. Wicklund works of counsel to Richman Law & Policy. Her work focuses on the domestic food supply, including...  |  Read More

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