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Food Labeling Claims: Differing Approaches

By Vivian Quinn and Tracey Ehlers

Courts across the country are deciding almost on a daily basis whether and on what basis to certify class actions involving food and beverage products. A recent decision by the federal court for the Eastern District of New York provides an interesting analysis of the various elements of class certification as applied to food or beverage cases, and re-emphasizes the difference in approach by the federal circuits.

Because of this and other cases, we anticipate that courts will continue to dismiss putative class actions targeting the food and other industries where consumers do not typically retain receipts and may have no other objective method to establish that they purchased the at-issue product. See, e.g., Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013). Also, given what some see as a momentum shift with regard to labeling claims (in favor of the defense), we believe there will be continued attempts by the plaintiffs' bar to create new and novel approaches to save their claims.

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