In Lytle v. Nutramax Laboratories, Inc., 114 F.4th 1011 (9th Cir.), the Ninth Circuit Court of Appeals addressed two key issues arising in motions for class certification: (1) whether plaintiffs’ proposed unexecuted damages model is sufficient at the class certification stage; and (2) whether plaintiffs adequately demonstrated reliance was provable by common evidence.Continue Reading Ninth Circuit Addresses Damages Models In Lytle v. Nutramax Labs., Inc. Decision

On November 4, 2024, the U.S. Food and Drug Administration (FDA) announced the publication of its Supplement to the 2022 Food Code. The Supplement updates the 2022 Food Code with retail food handling and safety recommendations formulated by regulatory officials, industry, academia, and consumers at the 2023 Biennial Meeting of the Conference for Food Protection. The Food Code is a non-binding publication by the FDA arising out of the work of the conference intended for states to enact into law, and/or for food service providers to adopt as best practices.Continue Reading Supplement to the 2022 Food Code

Plastic packaging and food ware are some of the first targets of California’s ambitious and far-reaching program to achieve a “Circular Economy” that reduces waste and pollution. The California Department of Resources, Recycling and Recovery (CalRecycle) is constructing a complex structure of procedures and requirements to reduce the total amount of plastic used in the state by at least 25 percent, to increase recycling of packaging and food service ware to 65%, and to ensure the use of recyclable or compostable materials in single-use packaging and containers for most products by 2032.Continue Reading California Aims to Revolutionize Packaging and Food Ware: Answers to Key Questions about Recycling, Composting and Source Reduction Requirements

2025 will be a landmark year in the regulation of per- and polyfluoroalkyl substances (“PFAS”), which have been nicknamed “forever chemicals” because of their persistence in the environment. For decades, PFAS have been used in all kinds of products (see table below). Addressing problems related to PFAS has been a federal priority since 2021, when the U.S. Environmental Protection Agency (“EPA”) published its “PFAS Roadmap” outlining a program of research, control, and cleanup. Most recently, the EPA adopted new reporting requirements covering all PFAS used in products since 2011, which are expected to affect 130,000 businesses. In 2025, EPA data-gathering programs will go into effect to determine where, when, and how PFAS have been and are currently being used. Thousands of facilities will also be required to submit reports on PFAS for the first time. Continue Reading PFAS Questions Every Company Needs to Ask Now: Have Any of Our Products Contained PFAS? Do We Use PFAS at Any of Our Facilities?

Republican and Democrat candidates alike have promised along the campaign trail that they will work to address the costs of everyday essentials for American consumers, particularly for food. One of the centerpieces of the Harris-Walz campaign is enacting “the first-ever federal ban on price gouging on food and groceries”[1] and the Trump-Vance campaign has decried the rising price of eggs as a byproduct of the Biden Administration’s economic policies.[2] Candidates’ focus on the checkout counter is unsurprising given reports that rising prices are one of voters’ top concerns this election cycle. And while the Consumer Price Index indicates that the current rate of inflation is 2.4% and on a downward trend,[3] certain data show that the price for food has increased by an average of 25% across urban cities in the United States since 2020.[4]Continue Reading Campaign Promises to Address Rising Prices at the Grocery Store Signal Stronger Price Gouging Investigations, Enforcement Actions, and Prohibitions to Come

“Best By”, “Use By”, “Sell By” dates. To clarify quality and safety dates on food labels, on September 28, 2024, a new law was enacted in California that requires food manufacturers, processors, and retailers responsible for food labeling to “display a date label to communicate a quality or safety date on a food item manufactured on or after July 1, 2026[.]” This new law does not apply to infant formula, eggs or pasteurized in-shell eggs, beer or other malt beverages. Subject to those exceptions, A.B. 660 provides that for food manufactured on or after July 1, 2026, food labels will be required to display one of these uniform terms:Continue Reading Food Labeling Update: Quality and Safety Dates – Clarifying “Best By” and “Use By”

In the world of class action lawsuits, damages calculations and whether or not prejudgment interest accrues can become high-stakes battlegrounds. These issues are highlighted in the recent Ninth Circuit decision in Montera v. Premier Nutrition Corp. FKA Joint Juice, Inc., Nos. 22-16375, 22-16622, slip op. (9th Cir. Aug. 6, 2024). The case had been appealed by both parties from the Northern District of California in one of the few class actions to go to jury trial. (N.D. Cal. Case No. 3:16-cv-06980-RS.) The plaintiff asserted that “Joint Juice” was misleadingly labeled under New York’s General Business Law (“GBL”) §§ 349 and 350 because the product did not work to improve joint function or to remediate joint pain. The jury awarded the class of consumers full refund damages totaling $1,488,078.49 based on 166,249 units of product sold. The plaintiff then sought statutory damages in the amount of $91 million. This figure was derived by adding the $50 statutory penalty for GBL § 349 violations with the $500 statutory penalty for GBL § 350 violations, multiplied by the 166,249 units sold. The plaintiff also sought prejudgment interest totaling $4,583,004.90 – again far dwarfing the amount of actual damages. The District Court ultimately reduced the award of statutory damages on due process grounds to $50 per violation for a total of $8,312,450 plus prejudgment interest, and an appeal to the Ninth Circuit followed.Continue Reading Ninth Circuit Issues Long-Awaited Montera Decision Applying New York General Business Law §§ 349 and 350, Confirming “Per Violation” Damages but Striking Prejudgment Interest

The Ninth Circuit’s recent Whiteside decision complicates the question of when information on the back of a product’s packaging can be used to clarify information on the front of the packaging. As a result, the bar for using back of pack information at the motion to dismiss phase seems to once again be raised.Continue Reading What Must the Consumer Read on Product Packaging? The Answer is Anything but Black-and-White Following the Ninth Circuit’s Whiteside Decision

After being plagued for two decades with claims brought under the California Private Attorneys General Act (“PAGA”), recent reforms mean employers may now see a decrease in (though not an elimination of) such claims. PAGA authorizes aggrieved employees to bring a civil action against an employer to recover penalties on behalf of themselves and other employees. Continue Reading PAGA Reform May Curb Appetite for Litigation

On the eve of the July 1, 2024 deadline for businesses to comply with California’s so-called junk fee ban (“SB 478”), Governor Gavin Newsom signed into law SB 1524, which allows restaurants, bars, and other food services businesses that sell directly to consumers to continue using surcharges so long as such fees are “clearly and conspicuously” displayed.Continue Reading California Legislature Eighty-Six’s “Junk Fee Ban,” But Relief May Be Temporary