Food and Beverage Class Actions: Litigating False Advertising, Labeling, Slack-Fill Packaging or Food Safety Claims

Navigating Issues of Ascertainability, Predominance, Preemption, Standing and More

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

Conducted on Thursday, July 13, 2017
Recorded event now available

This CLE webinar will provide class litigators with a deep dive into pursuing and defending against class action lawsuits targeting the food and beverage industry businesses. The panel will review recent court rulings in class suits against food and beverage manufacturers, distributors, and retailers based on false advertising, mislabeling, slack-fill packaging, and food safety violations. The panel will offer their perspectives and insights, outlining practical strategies for plaintiff and defense counsel to address both the merits of the claims and certification as a class action.


Food and beverage manufacturers, distributors and retailers are facing a rapidly growing number and type of class action filings, alleging false advertising, mislabeling, deceptive packaging, food-borne illnesses, and contaminated products. Monetary damages in these cases are often astronomical, i.e., based on annual sales of the product at issue, punitive and statutory damages, and attorney fees and costs.

Historically a target for personal injury class claims, food and beverage businesses are facing an escalation in class claims based on misleading food labeling using popular descriptors, such as “natural,” “organic,” “ethically sourced” or “GMO free,” and apparently deceptive “weight out” changes (reducing the amount of product with non-functional slack-fill in oversized but familiar packaging) (Starkist tuna, McCormick pepper).

Pursuing or defending class suits against food and beverage businesses requires counsel to navigate and distinguish the boundaries among and between various federal laws and agency regulations (FDA, FTC and U.S. Department of Agriculture) and state consumer protection laws. Plaintiff and defense counsel must consider preemption, primary jurisdiction, plausibility, and standing to pursue claims or obtain dismissal.

Listen as our authoritative panel of class action counsel discusses current trends and case law developments in food and beverage class action lawsuits. The panel will outline strategies for plaintiff and defense attorneys to increase the likelihood of success during class certification and at trial.


  1. Food and beverage class actions—latest legal trends and developments
    1. False advertising
    2. Mislabeling
    3. Slack-fill packaging
    4. Food safety
  2. Litigation strategies—plaintiff and defense perspective
    1. At certification
    2. At trial


The panel will review these and other key issues:

  • Strategies and tactics for plaintiffs’ counsel in pursuing food and beverage class actions
  • Defense counsel approaches to prevail at certification and trial in food and beverage class claims
  • Latest legislative and case law developments impacting food and beverage claims


Robert E. Boone, III, Partner
Bryan Cave, Los Angeles

Mr. Boone is the Leader of the Firm's Class and Derivative Actions Client Service Group. His practice focuses on defending financial institutions and manufacturers against consumer class actions, complex commercial disputes and product liability/tort litigation in federal and state courts nationwide. He represents food manufacturers against slack fill claim and authored the article, Defending Food Packaging Design Against Slack Fill Claims.

Yvonne M. McKenzie, Partner
Pepper Hamilton, Philadelphia

Ms. McKenzie is a member of the Firm’s Food and Beverage Industry Group and focuses her practice on counseling and defending companies with products regulated by the FDA, including prescription medications, food and beverages. She has extensive experience litigating class action suits brought by consumers and third-party payors alleging false advertising and fraud in violation of state consumer fraud and unfair trade practice laws. She advises clients in the food and drug industries on regulatory compliance and risk assessments and mitigation strategies, including counseling on advertising and other promotional activities, as well as statements made in labeling, scientific disclosures, press releases and regulatory submissions to U.S. and foreign regulatory agencies.

Robert D. Phillips, Jr., Partner
Alston & Bird, San Francisco

Mr. Phillips is a business litigator with nearly 40 years of experience assisting numerous companies in high-stakes class actions and other litigation related to unfair competition, false advertising, privacy issues, product liability, labor and employment, life insurance, financial services, trade secret litigation and food labeling. His counsel extends to litigation involving financial products, consumer products, life insurance and annuity sales, advertising and labeling cases against manufacturers and retailers, employment issues, antitrust and product liability. In addition to serving clients throughout California, he serves as lead counsel in national class actions in jurisdictions across the country and has won numerous cases in state, federal and appellate courts.

Charles C. Sipos, Partner
Perkins Coie, Seattle

Mr. Sipos litigates complex commercial cases, with a focus on class action litigation and an emphasis on defending consumer protection class actions against food and beverage companies. He has successfully defended numerous class actions for food industry clients in courts nationwide, including in California, Illinois, New Jersey, New York, Colorado, Florida and the U.S. Courts of Appeal for the Ninth and Seventh Circuits. He has presented arguments resulting in dismissals and summary judgment based on federal preemption, lack of standing, primary jurisdiction, failure to allege damages and related defenses. In addition to his litigation representation, he counsels food industry clients on federal regulatory matters, risk analysis for advertising and labeling claims, and administration of food recalls. He is a frequent speaker and author invited to offer insight on emerging issues in food litigation.


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Class Action Law Advisory Board

Thomas Allen


Reed Smith

Steve Berman


Hagens Berman Sobol Shapiro

Brian Boyle


O'Melveny & Myers

H. Douglas Hinson


Alston & Bird

Daniel R. Karon


Karon LLC

Robert S. Kitchenoff


Weinstein Kitchenoff & Asher

Neal R. Marder


Akin Gump Strauss Hauer & Feld

Michael McCluggage


Eimer Stahl

W. Ray Persons


King & Spalding

William B. Rubenstein


Harvard Law School

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