Issue:

Food and nutritional supplement companies have become a top target for class actions and individual lawsuits following increased attention to product labeling, advertising, genetically modified organisms (GMOs) and consumer fraud.

Challenge:

This emerging area of law requires novel approaches and deep experience in handling the assertive plaintiffs’ bar and navigating the FDA’s regulatory requirements.

Solution:

Perkins Coie protects food and beverage clients by deploying decisive measures that reduce their liability and, when feasible, shut down litigation early and cost-effectively. We have achieved early dismissals in high-stakes class and mass actions and we often lead the industry conversation in this evolving area of law. Highlights include:

• Our winning defense in the class action Turek v. General Mills, which involved nutrient- content claims and led to the first published federal appellate decision on the scope of Nutrition Labeling and Education Act (NLEA) preemption.

• An aggressive strategy of seeking summary judgment prior to class certification, which resulted in substantial litigation savings for our client in In re Cheerios. This multidistrict litigation involved five putative nationwide class actions challenging statements made on the label of Cheerios cereal regarding its cholesterol lowering properties.

• Obtaining a dismissal in Maple v. Costco Wholesale Corp. on preemption grounds of claims in a consumer class action. The claims alleged violation of Washington’s Consumer Protection Act and misrepresentation and negligence in connection with a claim of “natural caffeine” on a beverage sold under the name “VitaRain Vitamin Enhanced Water Beverage.”

Perkins Coie is well schooled in addressing arguments challenging the use of GMOs, food bioengineering claims, claim substantiation issues and “all natural” claims. These include preemption, failure to allege or establish damages, lack of specificity under Federal Rule of Civil Procedure 9(b) and federal First Amendment and Commerce Clause defenses.