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Law Office Management

Jan. 2, 2015

Label Litigation Feeds New Practices

As Northern California sees a smattering of food cases, a new practice area grows.

After defending food makers in more than three dozen cases alleging misleading food labeling in the Northern District of California, William Stern of Morrison & Foerster began calling it the "Food Court." The nickname struck a chord in a state known for its food - as well as its consumer protections - and it stuck.

"It provides for an unlimited number of metaphors," says Stern, a partner in the San Francisco office. "Every time you read an article about these food cases, everybody has a new pun."

Jokes aside, the practice area is seeing serious growth statewide, litigators say. Several firms even blog about the field. Christopher Van Gundy, a co-chair of the State Bar's new standing committee on food law, says labeling isn't the only thing in play.

"We're moving beyond traditional stuff - the safety stuff - to regulatory compliance, food authenticity, green-washing, private regulation," says Van Gundy, a partner at Keller and Heckman in San Francisco. "Right now, we're defining and expanding traditional food law as a separate jurisprudence."

The idea that the Northern District is a plaintiff-friendly place to file food-labeling cases hasn't proved accurate, plaintiffs and defense counsel agree, even though dozens of suits continue there. "It is certainly a mixed bag," says Robert Bader, a vice-chair of the bar's food law committee. "Judges in the same courts here are coming down on different sides on the same issues."

The Ninth Circuit is considering conflicting class certification rulings by two Northern District judges - Charles Breyer and Lucy Koh - in three separate cases involving food labeled "natural." (See Werdebaugh v. Blue Diamond Growers, 2014 WL 2191901 (May 23, 2014); Jones v. ConAgra Foods, Inc., 2014 WL 2702726 (June 13, 2014); and Brazil v. Dole Packaged Foods, LLC, 2014 WL 5794873 (Nov. 6, 2014).) Plaintiffs say that description misled them to pay extra for, among other products, Pam cooking spray (which contains propellants), tomatoes canned with processed citric acid, and almond milk sweetened with "evaporated cane juice" (sugar).

"There is not an abundance of jurisprudence in the Ninth Circuit in the food-labeling arena," agrees Pierce Gore, of counsel at Pratt and Associates in San Jose. Gore is a leader in a consortium of 40 consumer plaintiffs attorneys who have filed more than 50 mislabeling cases starting in 2012. "There are a few famous cases, but a lot of the things we've been litigating ... the Ninth Circuit has yet to weigh in on."

Food law generally is in flux. Under the U.S. Supreme Court's ruling last year in POM Wonderful LLC v. Coca-Cola (134 S. Ct. 2228 (2014)), competitors may bring claims alleging that false or misleading labels constitute unfair competition. "The FDA used to be the one stop for all food law. That's changed," says Van Gundy, who was POM's lead in-house trial counsel.

Food producers also are adapting to broad changes in federal regulations as the Food Safety Modernization Act of 2011 (Pub. L. No. 111-353) continues taking effect. This month the FDA gains new powers to shut down producers for safety violations. The law also requires international companies to come up with their own safeguards for food production abroad. Van Gundy says these changes give producers more responsibility.

Bader, another industry defense attorney, expects a continuing rise in complaints under California's Safe Drinking Water and Toxic Enforcement Act of 1986, passed by voters as Proposition 65; it mandates warnings about dangerous chemicals present in products and public places.

Michael Roberts, founding executive director of UCLA's Resnick Program for Food Law and Policy, says student interest is "tremendous." His program, launched in 2013, was the first at a major law school. Harvard soon followed suit, and related classes are now taught at more than 20 high-ranking law schools, including UC Berkeley, he says. Roberts sees the practice area expanding further as attorneys tackle issues such as equity and accessibility, local regulation, labeling for genetic modifications, and even security in the face of climate change.

"Food law is both new and old - we've been regulating food since the days of Rome," Roberts says. "It's so basic and so fundamental to human life. ... I think it's here to stay."

#296979

Kari Santos

Daily Journal Staff Writer

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