Ca. Litig. Rev. 2017

Food Law

By Christopher Van Gundy, Maria Jhai and Shalini Dogra

Food litigation has continued to be a hot area in California law. The cases shape the legal landscape, driving developments in class-action law in particular. The cases also track changes in the industry. Some labeling claims continue apace: slack-fill suits, as well as challenges to the use of the terms "natural," "healthy," and "added sugar," continue to be hotly litigated. Others arise as companies respond to evolving consumer preferences. For example, we see legal challenges to "fresh-pressed" and "cold-pressed" labeling claims related to the increased prevalence of high-pressure processing. The term "milk" used to described plant-based beverages still prompts litigation, despite prior pleading-stage dismissals, perhaps because of the growing ubiquity of products that use cow-milk alternatives. The sustained progression of food law as a practice area seems to be the result of a perfect storm: the reasonable-consumer standard itself, that allows for some indeterminacy regarding what labeling claims may engender liability; the health-conscious and ever-changing preferences of modern consumers; the market-power of small-company disruptors who are adept at responding to, and driving, consumer preferences; and the growing trend for major food companies to acquire, or mimic, those disruptors, putting their big-company deep pockets in play. This collection of cases from 2017 illustrates those big-picture trends, as well as some of the nuts-and-bolts changes in the day-to-day practice of law in this area.

Ninth Circuit Rejects "Administrative Feasibility" Requirement for Class Actions

Briseno v. ConAgra Foods, Inc. (9th Cir. 2017) 844 F.3d 1121

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