Category: Food litigation tips

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Stoel Rives Attending the Women in Agribusiness Summit #womeninagri

Our firm is really excited to send a team of women food law lawyers to participate in the Women in Agribusiness Summit taking place in Minneapolis this year. We’re currently on day 2 of the program, with great presentations on the schedule from representatives of Land O’Lakes, General Mills, Dow AgroScience, Zoetis, Monsanto, Cargill, Syngenta … Continue Reading

UCL Class Actions in California Expand Beyond “All Natural” Claims

The “All Natural” class action litigation in California has continued into 2012, as expected.  The claims in California are being filed under California’s consumer-friendly unfair competition law (or UCL), which is codified in sections 17200 and 17500 of the California Business & Professions Code, and the Consumer Legal Remedies Act (CLRA). Given the costs and … Continue Reading

“All Natural” Class Action Litigation in California: What’s in Store for 2012?

California litigators Tom Woods and Melissa Jones have prepared a Litigation Legal Alert on "All Natural" class action litigation in California and what to expect in 2012.  The Alert, which is linked above, provides background information regarding "All Natural" class action litigation in California.  It also discusses why the authors believe that class action litigation in this area … Continue Reading

FDA’s Reportable Food Registry Makes a Profound Impact

Here is a link to my article, "FDA’s Reportable Food Registry Profoundly Impacts Litigation and the Food Industry," posted this week by the American Bar Association‘s Litigation Section (Products Liability). The article is a follow-on to lively discussions over the litigation impacts of the federal Reportable Food Registry ("RFR") at the ABA’s recent Food & … Continue Reading

Health Claims Class Actions Set to Explode

Stoel Rives food liability attorney Ken Odza discussed with NutraIngredients-USA.com the significance of a rise in activism from consumer lobby groups combined with food manufacturers pushing the envelope with more aggressive health claims. General Mills recently lost its bid to invalidate class action certification at the Eleventh Circuit of Appeals in a Florida lawsuit involving … Continue Reading

How Regulatory Changes Affect Litigation Risks

On February 24, 2011, Lee Smith and I presented "How Regulatory Changes Affect Litigation Risks" to the Grocery Manufacturers Association’s food litigation conference. A link to the slide-deck can be found here. We discussed ways that the Reportable Food Registry (RFR) and the Food Safety Modernization Act (FSMA) are affecting litigation now and can be … Continue Reading

Why CSPI’s Loyalty Card Suit Has No Merit and Does Not Promote Food Safety

Following the playbook it has followed in the past with sodium and other issues, the Center for Science in the Public Interest (CSPI) has filed yet another complaint of very questionable legal merit to promote a policy agenda. This time CSPI seeks to compel all retailers to use loyalty cards as a recall alert system. … Continue Reading

Strategies to Defeat Putative Class Claims Challenging Labeling and Marketing of Food Products

April 8, 2011 – Scott Rickman from Del Monte, Lara White from Adams and Reese, and I will be talking at the Defense Research Institute (DRI) food law break-out. This event is held in conjunction with the DRI annual product liability conference in New Orleans. Click here for the complete manuscript that we’ve prepared to … Continue Reading

How the Food Safety Modernization Act Changes the Status Quo

Yesterday (while taking a break from the Sustainable Food Summit in San Francisco), I traveled to Modesto, California to speak to the Manufacturer’s Council of the Central Valley. I spoke about the new Food Safety Modernization Act (FSMA). The focus of my talk was how the FSMA changes the status quo for food businesses. And … Continue Reading

Food Safety Tools and Defenses for Cheesemakers

Cheesemakers have endured a string of bad publicity recently over food safety. Cheesemakers, especially raw milk cheesemakers, are in the cross hairs of the FDA, the media, retailers and plaintiffs’ lawyers such as Bill Marler. I was interviewed last week on FDA seizure issues by the Pacific Northwest Cheese Project. Click here for the PowerPoint … Continue Reading

Multiple Occurrences in a Single E.Coli Outbreak: Double-Edged Sword for Insureds?

Marler Clark clients and the owners of the restaurant that sold MarlerClark’s clients food they claim was contaminated with E.coli O111 joined forces against the restaurant’s insurer. In the end, the peronsal injury plaintiffs and the restaurant insured convinced the United States District Court for the Northern District of Oklahoma  on a Rule 56 summary judgment motion that a … Continue Reading

Listeria Recall Toolkit

The FDA recently took the relatively unusual step of obtaining a court-issued warrant to seize all cheese products at Estrella Family Creamery, a small, family-owned artisan cheese maker in Washington State. According to the United States Attorney’s Office for the Western District of Washington, "the FDA asked Estrella to recall all cheese products. The company … Continue Reading

Litigation Strategies for Responding to Significant Consumer Threats

I’ve been invited to speak this Friday at the University of Oregon School of Law‘s symposium entitled "Cultivating Our Future: New Landscapes in Food and Agricultural Law and Policy" as a part of the "Food for Thought – Strategies for Advocacy" panel. I’ll outline a series of tools food lawyers can and should use to … Continue Reading

Regulatory Compliance Alone Is Not Enough: Understanding and Mitigating Consumer Fraud Claims

Click on the image below to view the slide-deck from the presentation that I recently gave with Scott Rickman from Del Monte at ACI’s summit on Food Safety and Regulatory Compliance in Chicago. The ACI summit was a nice introduction to food regulation byFDA, USDA, FTC, EPA and DHS. Our presentation was intended to start … Continue Reading

Strategy to Defeat Consumer Class Claims

As we’ve discussed previously in this blog, the Supreme Court’s plausibility pleading standard, as articulated in the Iqbal and Twombly cases often provides a rapid (and relatively inexpensive) pathway to defeat consumer fraud claims. At the ACI food regulatory conference last week, we discussed a strategy to take advantage of the plausibility pleading standard in … Continue Reading

Some Take-Aways from ACI’s 3rd National Forum on Food-Borne Illness Litigation

American Conference Institute (ACI) recently held its latest conference on food-borne illness litigation. The conference has been a fairly intimate gathering of the nation’s lawyers, insurers and experts involved with food-borne illness litigation. This year, I had the privilege of moderating an in-house counsel “think tank.” The panel was composed of lawyers from a nice … Continue Reading

Before the Outbreak, Preapprove Defense Counsel with Insurer

When a food-borne illness outbreak happens, few food companies (especially those whose brand is at stake) want an unfamiliar defense lawyer who has little knowledge about food-borne illness responding to claims asserted against them. Unless a food company maintains a high, self-insured retention or has the lawyer of its choosing preselected, its insurer might appoint … Continue Reading

Challenges of a Lanham Act Injunction in Food Cases: Lessons from an Advertising Battle Between Two Major Consumer Products Companies

The recent decision in Stokely-Van Camp, Inc. v. Coca-Cola Co. (i.e., Gatorade vs. Powerade) illustrates the hurdles a company has to overcome to convince a court to stop a competitor from using arguably false advertising. Stokely-Van Camp, Inc. (“SVM”) was challenging advertising that compared Powerade ION4 to Gatorade Thirst Quencher. Judge John G. Koeltl of the Southern … Continue Reading

Facts Alleged in CSPI Sodium Suit Incongruent with Claims Asserted

Thought to be the first putative class action against a restaurant chain related to disclosure of sodium content on menus, Center for Science in the Public Interest (CSPI) has filed what appears to be a test case against Denny’s. Best guess is the case will fail on its merits (though for CSPI, success in litigation may not be the … Continue Reading

Opening the Door to More Litigation Between Food Companies? See POM v. Ocean Spray Decision

False advertising claims under the Lanham Act and corresponding state law claims for food companies can be tough going. Many intersect issues regulated by the FDA under the Federal Food, Drug, and Cosmetic Act (FFDCA). No private right of enforcement of the FDA regulations exists. Only the FDA is allowed to bring a legal action … Continue Reading

Tool For Food Companies and Litigators – New Guidelines for Foodborne Disease Outbreak Response

Council to Improve Foodborne Outbreak Response (“CIFOR”) has published new guidelines designed to help local, state and federal agencies to improve their response to outbreaks. I became aware of this (again) through Ricardo Carvajal, who was a reviewer for the guidelines, and his firm’s FDA Law Blog. I agree with Ricardo that while the guidelines … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – Introduction (part I of III)

By guest blogger Jerry Chiang In starting any business enterprise, especially in the food industry, incorporating the business as a corporation or limited liability company is as important as having a good product or solid business plan. Incorporation is essential because it shields owners from the liabilities of their business. A lawsuit against the business … Continue Reading

Settlements and Implied Warranties

Article 2 of the Uniform Commercial Code contains powerful tools for buyers and sellers of food and other goods.  A recent case out of the Georgia Supreme Court emphasizes the critical gatekeeper function of the scope section of Article 2, Section 2-102.  This section provides: Unless the context otherwise requires, this Article applies to transactions … Continue Reading
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