SEATTLE, Wash. (February 27, 2019) – Perkins Coie has announced the release of its 2018 Food Litigation Year in Review report. Authored by the firm’s Food Litigation team, the third annual report analyzes significant verdicts, trends driving lawsuit filings and notable legal developments impacting the food and beverage industry.

With 158 filings, the Year in Review reveals that 2018 was one of the most active years for class action filings, and that pace will not slow down this year. Continued success for the “reasonable consumer” defense, courts’ acceptance of formerly rejected damages models and increased attention toward multifunction ingredients and other ingredient labeling are just some of the factors the Year in Review examines as contributors to this trend.

“The plaintiffs’ bar remained incredibly active in 2018 and will likely remain at that level for the foreseeable future,” said partner David Biderman, Chair of Perkins Coie’s Consumer Litigation practice. “The district courts’ willingness to allow formerly rejected damages models opens doors for plaintiff class action counsel to craft new theories to advance suits. That, combined with the still-growing number of cases we’re seeing tied to labeling and disclosures, will certainly keep counsel busy in 2019.”

The Year in Review goes on to examine the continued filing of class action claims regarding matters on which the industry has faced pushback for years, such as false labeling and slack fill, in addition to the growing issue of corporate responsibility in the sector.

“While filing levels are up, so is the degree of skepticism courts are showing to many of these cases,” said Co-Chair of Perkins Coie’s Food Litigation practice, partner Charles C. Sipos. “Courts are increasingly willing to take a hard look at these complaints, and will dismiss them out of the gate if the plaintiffs’ theory is far-fetched, or if the science plaintiffs rely on doesn’t support the claims.”

The Year in Review’s key findings include the following:

• Class action filings rose again, particularly in New York. There were 13 more class action filings in 2018 than in 2017. Although California still saw the most filings, there was a nearly 4 percent decrease there in 2018 than the year prior, whereas New York saw a 33 percent increase and thus revealed a shift toward that jurisdiction.
• False labeling claims rose again. 2018 saw another jump in false labeling claims, with a 16 percent increase—although that was a notably smaller amount than the 60 percent increase in 2017. Allegations claiming that labels are deceptive due to the presence of trace pesticides, and increasing attacks on dual-function ingredients like malic and citric acid, are likely to remain favored targets of plaintiffs’ counsel in 2019.
• The “reasonable consumer” defense continued to bring clarity. Courts’ reliance on the “reasonable consumer” standard remained strong in 2018 as they turned to that defense in lawsuits that were based on improbable definitions of labeling terms.
• Conflict preemption limits the reach of Proposition 65. Perkins Coie was defense counsel in a pathbreaking Proposition 65 decision, with the California Court of Appeals holding that conflict preemption bars Proposition 65 warnings for cereal, given longstanding federal government guidance encouraging consumption of whole grain cereals as part of a healthy diet.

To view the Perkins Coie 2018 Food Litigation Year in Review, please visit the link here. Also, visit Perkins Coie’s Food & Consumer Packaged Goods Litigation blog, which offers up-to-the-minute updates and insights on litigation activity in the food and consumer packaged goods 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 Food & Beverage Practice Group of the Year by Law360. The group is also consistently ranked in Band 1 for Retail by Chambers USA.

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.

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