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Food and Beverage Class Actions: Reasonable Consumer Defense in False Advertising and Deceptive Labeling Cases

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Tuesday, July 30, 2024 (in 12 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

(Alert: Event date has changed from 7/11/2024!)

or call 1-800-926-7926

This CLE course will address class actions alleging false advertising and deceptive/ambiguous labeling claims for food and beverages, and whether the decision in McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), has had an impact on the "ambiguity rule" in and outside the Ninth Circuit. The speakers will review trends and current developments of 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, though over time specific labeling issues may ebb and flow. Defendants include major food companies to small, family-owned businesses. A gauntlet of federal laws, agency regulations (FDA, FTC, USDA), 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. McGinity v. P&G may offer defendants some leverage at the motion to dismiss stage. In 2023, at least eight decisions involving the reasonable consumer defense were issued by the Second and Ninth Circuits.

Much of the litigation focuses on specific chemicals, such as PFAS, or certain additives, such as citric acid and malic acid, which plaintiff’s assert render "all natural" or "no artificial flavors" or "no preservatives" false and misleading. The use of terms such as "sustainable," certified, and claims about carbon footprints or other "green" issues may be new versions of traditional themes.

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. Considerations after certification decision

Benefits

The panel will review these and other key issues:

  • What is the effect of McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023) on the "ambiguity rule" in and outside the Ninth Circuit?
  • 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

Biderman, David
David T. Biderman

Partner, Chair Consumer Products and Services Litigation
Perkins Coie

Mr. Biderman focuses his practice on mass tort litigation and consumer class actions. He represents packaged food...  |  Read More

 Henry, Sascha
Sascha Henry

Partner, Business Trial Group Practice Leader
Sheppard Mullin

Ms. Henry excels at helping clients respond to sensitive and complex litigation, including class actions. Her...  |  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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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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