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

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.

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.