Cases out of New York involving food products catch our eye these days, as NY threatens to become the new “food court.”  Today’s post involves Eric Parham  v. ALDI, Inc., No. 19 CIV. 8975 (PGG), 2021 WL 4296432 (S.D.N.Y. Sept. 21, 2021).

Plaintiff asserted false advertising claims under New York General Business Law (“GBL”) §§

The Ninth Circuit recently decertified a class of consumers claiming Coca-Cola falsely labelled its drinks as having no artificial flavors when they contain phosphoric acid.  In re Coca-Cola Prod. Mktg. & Sales Pracs. Litig. (No. II), No. 20-15742, 2021 WL 3878654, at *1 (9th Cir. Aug. 31, 2021).  Plaintiffs had sought injunctive relief, and the

Readers may be interested in the new U.S. Chamber Institute for Legal Reform report, “The Food Court: Developments in Litigation Targeting Food and Beverage Marketing.”  The paper was authored by my colleagues Cary Silverman, Jim Muehlberger, and Adriana Paris.

It can be found online and deals with the increasing number of consumer class actions targeting

A New York federal court has rejected yet another “vanilla” complaint.  In Cosgrove v. Blue Diamond Growers, No. 1:19-cv-08993 (S.D. N.Y. 12/17/20), the court dismissed a proposed class action alleging that the defendant improperly labelled its vanilla almond milk product finding that the company did not mislead consumers with the product’s vanilla flavor label.

Plaintiffs

Our readers know that vanilla-based litigation remains active.  Yet another proposed class claim fell short in Howard Clark v. Westbrae Natural Inc., No. 3:20-cv-03221 (N.D. Calif. 12/1/20).  Plaintiff  alleged that the use of the word “vanilla” on the label of Westbrae Natural, ’s organic unsweetened vanilla soymilk misrepresents to consumers that the product’s vanilla flavor

In a unanimous, published decision, a three-judge panel of the Ninth Circuit affirmed the dismissal of a a putative class action brought by a plaintiff-consumer who alleged claims arising when Diamond Foods allegedly included partially hydrogenated oils as an ingredient in Pop Secret popcorn. See McGee v. S-L Snacks Nat’l, 982 F.3d 700 (9th Cir. Dec. 5, 2020).

In sum, the panel affirmed the district court’s dismissal for lack of constitutional Article III standing as the plaintiff did not plausibly allege that, as a result of her purchase and consumption of Pop Secret, she suffered economic or immediate physical injury, or that she was placed at substantial risk of adverse consequences. Concerning plaintiff’s alleged economic injury, the panel held that plaintiff had not alleged that she was denied the benefit of her bargain, particularly given the labeling disclosure that the product contained artificial trans fat.

The panel also held that plaintiff failed to allege an economic injury based on an overpayment theory.
Plaintiff did not allege that Pop Secret contained a hidden defect, or that Pop Secret was worth objectively less than what she paid for it. Concerning plaintiff’s alleged present physical injury, the panel held that plaintiff had not plausibly alleged that she suffered physical injuries due to her consumption of Pop Secret. Concerning plaintiff’s alleged future physical injury, the panel held that plaintiff had not plausibly alleged that her consumption of Pop Secret substantially increased her risk of disease.


Continue Reading Everyone Knows Popcorn is (Trans-) Fattening

Vanilla in common parlance denotes, well, common.  And indeed, vanilla is one of the most common ingredients in food, whether as a primary flavor or a component of another flavor. But for centuries it was rare, a delicacy for the rich.  And even after new fertilization methods greatly expanded output, demand exceeded supply.  So, as