Annual report looks at key issues facing the food and beverage industry

SEATTLE, Wash. (March 6, 2018) – Perkins Coie has announced the release of its 2017 Food Litigation Year in Review report. Now in its second year, the report provides an overview of filings, significant court decisions and regulatory developments affecting the food and beverage industry.

Authored by Perkins Coie’s Food Litigation team, the Review examines the increase in food class action filings in past years, a trend it states is likely to continue throughout 2018. Growing skepticism from courts reflected in renewed success for the “reasonable consumer” defense, a circuit split over the class action ascertainability requirement and new additions to California’s Proposition 65 warning list are just a few of many issues addressed in the Review.

“Despite increased judicial scrutiny of food and beverage class actions, which often focuses on labels that accurately communicate information to consumers, the plaintiffs’ bar nonetheless remains highly active,” said David Biderman, Chair of Perkins Coie’s Consumer Litigation practice. “Even though consumers now, more than ever, are reviewing ingredients and labels more closely, and food manufacturers are providing information useful for informed consumer choices, plaintiff class action counsel continue to seek creative and novel theories to drive these suits.”

The Review goes on to state that although the number of food class action filings continues to increase, judicial resistance to these claims was likewise reflected in class certification rulings in 2017.

“Food and beverage class actions are ill-suited to class treatment,” said Perkins Coie Litigation partner Charles C. Sipos. “That is why many of these cases often falter at the class certification stage because of a lack of any reliable evidence of classwide damage.”

The Review’s key findings include:

• Class action filings continued to trend upward. There were 15 more filings than the previous year, the majority of which were in California—revealing that the state continues to be the preferred jurisdiction for these filings, just as it was in 2016.
• Increased vitality of the “reasonable consumer” defense and continued reliance on primary jurisdiction. The reasonable consumer defense was relied on by courts often in 2017 to support early dismissals in food-labeling cases. Likewise, courts continued to invoke primary jurisdiction to stay lawsuits challenging the use of the term “natural,” given the FDA’s ongoing regulatory proceedings on that issue.
• Circuit courts remain divided over the applicability of the ascertainability requirement. Since 2013, circuit courts have adopted differing approaches to the application of an “ascertainability” requirement for class certification. The issue remains unsettled, with the Supreme Court refusing once again in 2017 to take up the issue.
• Proposition 65 notices increased. California Proposition 65 pre-litigation notices continued to increase in 2017, with over 450 filed throughout the year, and more expected in the year ahead. Fewer than 300 such notices were filed in 2016.

To view the Perkins Coie 2017 Food Litigation Year in Review, please visit the link here. Also, visit Perkins Coie’s Food Litigation News blog, which offers up-to-the-minute updates and insights on litigation activity in the food and beverage industry.

Perkins Coie has worked with major food and beverage manufacturers and distributors, as well as their supply chain, since the beginning of the food activist movement and the increase in FDA regulations. Attorneys have advised clients on product recalls and product liability exposure and served as national coordinating defense counsel in complex nationwide class actions. Perkins Coie’s work has led to numerous recognitions, including being named a 2017 Food & Beverage Practice Group of the Year by Law360. The group is also consistently ranked in Band 1 for Retail by ChambersUSA.

Perkins Coie is a leading international law firm that is known for providing high-value, strategic solutions and extraordinary client service on matters vital to our clients’ success. With more than 1,200 lawyers in offices across the United States and Asia, we provide a full array of corporate, commercial litigation, intellectual property, and regulatory legal advice to a broad range of clients, including many of the world’s most innovative companies and industry leaders as well as public and not-for-profit organizations.

Media Inquiries: Please email Justin Cole, Head of Media Relations.