Emerging Trends In Class Action Lawsuits Against Food Manufacturers

Food manufacturers have been repeatedly hit with class actions in recent years. These cases are time-consuming and costly, diverting valuable resources from a company’s mission. Fortunately, food manufacturers have recently had some success obtaining early dismissal of class actions. The manufacturers, who are seeking to avoid protracted litigation and costly discovery, have sought dismissal of the lawsuits through a motion to dismiss filed early in the case or by challenging class certification.

A motion to dismiss challenges the sufficiency of the complaint itself and generally does not consider facts outside the complaint. If a defendant is successful in having the complaint dismissed, and the plaintiff cannot fix the problems by amending the complaint, the litigation ends.

In a recent case, Wright v. General Mills, Inc., a consumer challenged General Mills’ marketing of its Nature Valley granola bars and other products as “100 percent natural” because the products contained high fructose corn syrup (HFCS). The consumer argued that HFCS is a man-made sweetener that does not occur in nature, and the advertising was therefore false, misleading and deceptive. The consumer sought economic damages for herself and all class members because the “100 percent natural” advertising led them to “purchase, purchase more of, or pay more for, these Nature Valley products.”

However, the court found that “[t]his sparse allegation of injury” did not meet the pleading requirements set forth by the United States Supreme Court. The court also found that other allegations claiming that members of the public were likely to have been deceived by the advertising and to have made their purchases based on a belief that “100 percent natural” would not include a highly processed ingredient such as HFCS were inadequate. The court dismissed the complaint but gave the consumer an opportunity to file an amended complaint. The plaintiff elected not to do so and withdrew the claim.

Manufacturers have also sought to end cases at class certification stage because the claims asserted in class actions are generally not cost-effective to pursue on behalf of a single individual. Thus, if a defendant can show that a case is not appropriate for treatment as a class action, the plaintiffs (and their lawyers) typically lose interest in the case.

On January 6, 2010, the Ninth Circuit Court of Appeals handed down a victory for defendants. In Kennedy v. Natural Balance Pet Foods, the plaintiff sought to represent a nation-wide class of all individuals who purchased Natural Balance pet food that was labeled as having been made in the United States but contained an ingredient made in China. The Ninth Circuit affirmed the district court’s denial of class certification, holding that the plaintiff had failed to satisfy the predominance requirement of Federal Rule of Civil Procedure 23(b)(3). The plaintiff had included claims under multiple states’ consumer fraud statutes, arguing that the statutes were “substantially similar.” However, the Ninth Circuit held that where different states’ laws would apply to the claims, the class plaintiff must provide a thorough analysis of the applicable laws in order to show that common issues predominate, which the plaintiff failed to do.

The Ninth Circuit also rejected the plaintiff’s argument that the district court should have certified a nationwide class for his claim under California’s Unfair Competition Law. The Ninth Circuit held that the district court was not required to certify only a subclass or a class with respect to particular issues.

These cases bode well for food manufacturers seeking early dismissal of class actions, but one or two cases do not make a trend. There are several other cases currently pending involving food manufacturers which will address these same issues and, hopefully, further develop this emerging trend.

If you have questions regarding these class action lawsuits, you can contact Judy Okenfuss or Julianna Plawecki.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.