More than 300 class action lawsuits were filed last year against the food and beverage industry, according to the law firm Perkins Coie LLP in its sixth annual report on litigation in the sector.

The report highlights an alarming trend for the food and beverage sector: The number of class action lawsuits has been rising steadily since 2008, when just 19 cases were filed. The year 2021 was a record year with 325 cases filed, 104 more than the previous year (221), disclosed Perkins Coie, an international law firm that defends food and CPG litigation cases.

The majority of cases were filed in California (78), New York (117) and Illinois (44), according to data compiled by Perkins Coie, based on its review of dockets from courts across the U.S.

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Food and beverage class action lawsuits

2008: 19
2009: 26         
2010: 45
2011: 53
2012: 95
2013: 94
2014: 81
2015: 158
2016: 145
2017: 145
2018: 164
2019: 179
2020: 221
2021: 325

Source: Perkins Coie

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Baby food cases

Of note last year, 120 lawsuits targeted the baby food industry, stemming from a congressional probe, the law firm revealed in its annual report, “Food & Consumer Packaged Goods Litigation 2021 Year in Review.”

The inquiry, led by the House Committee on Oversight and Reform’s Subcommittee on Economic and Consumer Policy, identified “significant levels of toxic heavy metals” in baby food, including arsenic, cadmium, lead and mercury.

The lawsuits against Beech-Nut Nutrition Co., Gerber and others have alleged various causes of action, as Food & Beverage Insider previously reported—from unfair business practices and violations of state consumer protection laws to unjust enrichment and fraudulent concealment and omission.

“The consumer class action cases generally allege that the companies misrepresented the nature of the food by claiming that it was safe for consumption when the heavy metals rendered it harmful,” Perkins Coie explained. “Plaintiffs also allege the companies concealed the presence of heavy metals.”

Many of the cases have been consolidated in jurisdictions around the U.S., typically where the defendants are based, and several courts have named interim lead class counsel, according to the litigation report.

In January, a federal court in the Northern District of California denied a motion by Plum Inc. to dismiss a lawsuit, Perkins Coie said, adding it expects court orders to be issued in the next few months on other pending motions to dismiss.

False labeling claims, ‘Vanilla Vigilante’

The biggest category of cases tracked by Perkins Coie was related to false labeling claims, with 129 new cases in 2021, versus 100 the prior year.

“This category encompassed a broad range of theories, including: allegations that ‘made with real fruit,’ ‘salt and vinegar potato chips,’ and ‘all butter pound cake’ misleadingly suggested premium ingredients (fruit / vinegar / butter),” Perkins Coie reflected. The litigation report also cited false labeling claims focused on such statements as “slightly sweet” and “made with real fudge.”

“The breadth and creativity of these filings show how plaintiffs continue to scrutinize food and beverage labels for potential lawsuits,” Perkins Coie stated.

The 2021 spike in overall lawsuits against the food and beverage industry also can be traced, in part, to Spencer Sheehan, a New York-based lawyer. Sheehan has targeted vanilla flavoring in food products so often that he’s been dubbed New York State’s “Vanilla Vigilante,” the New York Post reported in a Dec. 15, 2021, article.

Last year, the American Tort Reform Foundation (ATRF) ranked New York as the second-worst “Judicial Hellhole” in the U.S. behind California. The organization in a recent press release said New York in 2020 had more food-related lawsuits than the next highest four states combined.

“The gap between California and New York is narrow, as the two jurisdictions battle it out for the most ‘no-injury’ class action lawsuits targeting the food and beverage industry and the most claims under the Americans with Disabilities Act,” according to the ATRF’s 2021-2022 “Judicial Hellholes” report.

Federal courts across the U.S. continue to dismiss Sheehan’s cases “at a steady pace,” according to Perkins Coie.

In a brief interview with Food & Beverage Insider, Sheehan said he estimated he has over 100 active cases pending in the U.S. courts against food and beverage companies, though he had not searched the court dockets to verify the actual number.

Asked about cases filed by him that have been dismissed, Sheehan responded, “A lot of cases get dismissed. I’d expect that unfortunately, so it’s not really a surprise and it’s not anything that I’m concerned about either.”

He confirmed some of his cases against the food and beverage industry have been the subject of private settlements.

Sheehan said he is not leading any cases in the U.S. appellate courts following dismissals by the district courts. However, he is one of the plaintiff’s lawyers involved in a case that is the subject of a recent notice of appeal after a federal court dismissed a lawsuit against Icelandic Provisions Inc.

The plaintiff alleged Icelandic Provisions misled consumers into believing its product “Skyr,” a yogurt, is manufactured with ingredients from Iceland, when it is actually produced in New York.

“Icelandic Provisions moved to dismiss, arguing that these packaging elements relate to the characteristics of the product rather than indicating where the product is made, and pointing to a back-label explicit disclosure that the product is ‘Proudly made in Batavia, NY,’” Andrew Leff, an attorney with Covington & Burling LLP, which represented Icelandic Provisions, wrote in a blog.

In a Jan. 25 order, U.S. District Judge Edward M. Chen of the Northern District of California rejected plaintiff’s allegations that certain words and imagery represented the product was made in Iceland. He concluded the product’s front label contained “no explicit statements” about where it was made, “and therefore a reasonable consumer can be expected to consult the back label.”

‘Reasonable consumer’ defenses, other trends

Perkins Coie cited several favorable appellate court rulings in 2021 regarding an important defense in false labeling cases: Whether a “reasonable consumer” would be misled by a label targeted in a lawsuit.

For example, the litigation report highlighted a 2021 ruling by the U.S. Court of Appeals for the Ninth Circuit involving Trader Joe’s Company’s manuka honey labels. The ruling, Perkins Coie concluded, highlights the “importance of commonsense reasoning and marketplace realities in such cases.”

Plaintiffs alleged Trader Joe's participated in “false, misleading and deceptive marketing” of its product because its manuka honey only contained between 57.3% and 62.6% honey originating from manuka flower nectar.

The Ninth Circuit determined the label would not mislead a reasonable consumer.

“First and foremost, given the foraging nature of bees, a reasonable honey consumer would know that it is impossible to produce honey that is derived exclusively from a single floral source,” Circuit Judge Kim McLane Wardlaw wrote on behalf of the three-judge panel. “Although a reasonable consumer might not be an expert in honey production or beekeeping, consumers would generally know that it is impossible to exercise complete control over where bees forage down to each specific flower or plant.”

Plaintiffs’ lawyers also continue to show interest in claims that a product is “natural,” the subject of more than 20 filings in 2021, Perkins Coie shared. Lawsuits have alleged certain ingredients in foods—including cheese pizza, falafel wraps and fruit juice—made natural claims that were false and misleading.

“Cases also challenged terms similar to ‘natural,’ relying on similar theories of deception as those seen in the natural cases,” Perkins Coie added. “Claims such as ‘pure,’ ‘100%’ and even labeling that is merely evocative of a natural product were targeted, a trend we expect to continue in 2022.”

Among other topics, Perkins Coie’s annual report also highlights litigation trends around:

• sugar in food;
• products labeled as flavored with vanilla;
• technical aspects of FDA labeling requirements focused on protein content;
• slack-fill; and
• serving sizes.

The report covers a variety of product categories beyond food and beverage, including pet food, supplements, personal care products and cannabis.

Editor’s note: Go here to request a full copy of the annual litigation report recently published by Perkins Coie. 
 

In an effort to protect fruits, vegetables and other produce from spoilage, many grocers choose to protect them in single-use plastic wrapping or packaging. However, a recent report from the sustainability charity Wrap indicates this practice may cause more harm than good in the form of not only pollution from the plastic packaging itself, but additional food loss through waste.

The group’s 18-month study investigated sales of apples, bananas, potatoes, broccoli and cucumber both with plastic packaging, including “Best before” dates, and loose without the dates. What they found was, along with the added pollution that comes from single-use plastic packaging—which the group estimates is upwards of 10,000 tons of plastic in the UK alone—the sale of fresh produce wrapped in plastic and including a “Best before” date actually increased food loss.

Plastic wrap “doesn’t necessarily prolong the life of uncut fresh produce,” said WRAP EO Marcus Gover. “It can in fact increase food waste in this case.”

In its study, Wrap notes that in the UK, nearly $3 billion worth of produce is thrown away annually because it has either gone moldy or its date label has expired. The group noted the plastic wrapping on produce in-store made “little or no difference” in shelf life, but did force consumers to often purchase more of a product than they needed, leading to waste. Additionally, the presence of a “Best before” date often leads to the disposal of produce before it is necessary; according to WRAP, 1 in 10 people throw food away if it has passed its label date, even if their judgment says the food is still good. Not only would the elimination of plastic packaging from produce save more than 10,000 tons of plastic, the group found, but more than 100,000 tons of food annually.

“For apples, potatoes and bananas, enabling people to buy the right amount is the most impactful way in which selling loose will help to reduce food waste, the report reads. “While most supermarkets sell some of these items loose already, the research shows a compelling case that this should be significantly increased, not just across these three products, but a wider range of fresh fruit and vegetables. While the study focused on five commonly wasted items, there are many more products that are currently sometimes sold loose where the research could also be applied.”

Food & Beverage Insider insights

Switching to a more sustainable method of packaging (or not packaging) food is obviously an important step in protecting the environment from the harms of polluting plastic, as well as limiting time- and money-wasting food loss. If that isn’t convincing enough, however, plenty of research indicates it’s also good business.

Recent proprietary research from Cargill, released as part of its most recent FATitudes survey, noted “55% of consumers indicate they’re more likely to purchase a packaged food item if it includes a sustainability claim, a four-point jump since the company last fielded this research in 2019.

Other research indicates sustainability messaging can impact consumer purchasing decisions, while a recent Retail Insight survey revealed more than two-thirds of shoppers have tried to be more sustainable over the last 12 months, including 88% of 25-to-34-year-olds. That same survey noted more than half (52%) of Millennials would be willing to pay more for their weekly grocery shopping if doing so helped the environment. Of note, another finding from that survey showed 70% of consumers believe retailers already use “excessive and/or unnecessary” packaging, with the same percentage showing concern about food waste.

The first study, published in Nutrients, found positive outcomes in nutrient intakes, diet quality, and weight-related health outcomes in individuals who consume mangos versus those who do not. Researchers used National Health and Nutrition Examination Survey (NHANES) 2001-2018 data to compare the diets and nutrient intakes of mango consumers to people who did not consume mangos.

Results showed children who regularly ate mango had higher intakes of immune-boosting vitamins A, C and B6, as well as fiber and potassium. Fiber and potassium are two of the four “nutrients of concern” as defined by the Dietary Guidelines for Americans, which means many Americans are not meeting recommendations for these. In adults, researchers found similar results, showing that mango consumption was associated with significantly greater daily intakes of fiber and potassium but also vitamins A, B12, C, E and folate, a vitamin critical during pregnancy and fetal development. For both children and adults, consuming mango was associated with a reduced intake in sodium and sugar, and for adults was associated with a reduced intake of cholesterol.

A separate pilot study, published in Nutrition, Metabolism & Cardiovascular Diseases, examined mango as a snack and found consuming whole mangos as a snack versus a control snack had better health outcomes in overweight and obese adults.

Researchers compared snacking on 100 calories of fresh mango daily to snacking on low-fat cookies that were equal in calories. Twenty-seven adults participated in the study, all classified as overweight or obese based on body mass index (BMI) and reported no known health conditions. Participants were given either mango or low-fat cookies as a snack while maintaining their usual diet and physical level for 12 weeks, and after a four-week washout period the alternating snack was given for another 12 weeks. Researchers measured the effects on glucose, insulin, lipid profiles, liver function enzymes and inflammation. At the end of the trial period, findings indicated that mango consumption improved glycemic control (an individual’s ability to manage blood glucose levels, an important factor in preventing and managing diabetes) and reduced inflammation.

Results showed there was no drop in blood glucose when participants snacked on low-fat cookies. However, when snacking on mangos there was a statiscally significant (p= 0.004) decrease in blood glucose levels at four weeks and again at 12 weeks, even though there was twice as much sugar, naturally occurring, in the mangos compared to the cookies. Researchers also observed statistically significant improvements to inflammation markers, total antioxidant capacity (TAC) and C-reactive protein (CRP), when snacking on mangos. TAC is a measurement of overall antioxidant capacity, or how well foods can prevent oxidation in cells. CRP is biomarker used to measure inflammation in the body. The findings suggest the antioxidants abundant in mangos offered more protection against inflammation compared to the cookies.

Historically speaking, innovation in the food industry can be slow. Change happens slowly as the big food ships steer cautiously toward new product offerings, a timeline that can sometimes stretch to two or three years. COVID necessitated quicker innovation to keep pace with rapidly evolving consumer needs and habits. Still, without structures in place to continue fostering an atmosphere of agile innovation, the timeline could easily stretch back to a pre-COVID length, especially at larger companies.

But with consumers expecting more creativity, new ingredient options, and greater diversity of products, slow innovation simply isn’t an option. Moving forward, how can food companies continue to drive rapid innovation? One could argue that the power for change lies with human resources (HR) and the broader leadership structure, and innovation will follow if companies can break from tradition to make room for new talent and collaborative environments.

A closer look at the problem

Why is innovation so slow in the food industry? For one, major food companies are risk-averse, often only innovating new products as a last resort. Large companies typically leave that risk to small food startups, later acquiring businesses that already have proof of concept. However, the majority of research indicates that most M&A deals are basically a coin toss.

Secondly, the food industry still prefers a traditional direction-setting leadership, where senior management creates the vision, and their teams follow their command. Unfortunately, this type of structure can anchor an organization in the past and slow development as it creates bottlenecks, decreases productivity, and ultimately kills innovation.

The third problem area is that small to medium-sized food manufacturers typically prioritize hiring candidates with food industry experience, a degree, and prior experience in a specific role. This means that companies miss out on hiring the great talent needed to build a diverse team—something that is essential for developing innovative products and services.

Collaboration and innovation

To make way for new spaces that spur collaboration and innovation, HR professionals in the food industry need to break the traditional leadership format. This means leaders should set the stage and not perform on it, HR should hire “rebel talent” and management should foster psychological safety to create an environment that supports innovation.

Linda Hill, the Wallace Brett Donham Professor of Business Administration at Harvard Business School and author of “Collective Genius” argues that the role of senior management should be to set the stage rather than perform on it. The typical style of leadership in the food industry has been to perform on stage, and most leaders have never actually set the stage for others. In other words, they need to shape a context in which their teams are willing and able to do the creating. Since senior managers are typically used to being the visionaries who inspire others, this calls for a new way to lead that may feel more like standing on the sideline. It’s about believing that ordinary people can do extraordinary things, and the role of the leader is to help unleash that slice of genius from their team members.

Another suggestion comes from Francesca Gino, the Tandon Family Professor of Business Administration and unit head of the Negotiation, Organizations and Markets unit at Harvard Business School. In her book “Rebel Talent,” Gino embraces the talent of rule-breakers and rebels. She argues these are the kind of people you want to hire to help your company innovate. Leaders also should encourage their existing teams to break the rules and old habits to discover the rebel talents already within their organization. These rebels believe in breaking the rules and old habits so they can discover new skills, transform, and create something new.

Companies may need to think about hiring outside of the food industry. When a hiring manager integrates team members from other sectors, the entire team gains insight into new strategies and ideas. This could be a simple software solution that wasn’t on the radar because no one in the industry had used it before, or it might be using the scrum framework from friends in tech and adapting it to new product development process to stay agile and competitive.

I’ve seen the success of this firsthand when my previous company was approached by a large chain restaurant with the opportunity to create a new product for distribution at 1,500 restaurants. The challenge was to produce the product in 60 days, whereas our team’s commercialization cycle time was 180 days. The only way we were able to successfully commercialize and deliver the products in the timeframe required was by applying scrum to our process. It was a huge success, and we would not have accomplished this without being open to using new ways of working.

Creating a comfortable workplace

To develop a space for rebel talents to perform on stage, it’s essential for leaders to create psychological safety in the workplace. This allows teams to feel comfortable enough to break the rules and create something new. As argued by Simon Sinek, author of “Start With Why and The Infinite Game,” “if you get the environment right, every single one of us has the capacity to do these remarkable things, and more importantly, others have that capacity too.”

Leaders must create a deep sense of trust within their organization so that their teams feel they have the safety needed to think creatively and courageously enough to spark groundbreaking ideas. There are a few ways Cadence Kitchen accomplishes this. First, it encourages the senior leadership team to stay humble and speak up in group setting when they make wrong decisions or encounter challenges. This allows the rest of the team to lean in and help each other produce solutions. It also sends a clear message that the team’s objective is to improve the organization, rather than focus on individual or department performance. Secondly, it incorporates humor to foster a comfortable and casual environment where the team feels confident in speaking up and sharing their ideas. Third, the company encourages a culture of curiosity and learning through its Continuous Improvement committee meetings where senior leadership team identifies and tracks the organization’s challenges and opportunities from all departments as a committee and tackles them together. These meetings enable the leadership team to see failures as learning experiences and opportunities to improve as an organization.

Industry at turning point

Today’s food industry needs to evolve beyond old leadership structures and dated hiring tactics to move forward in a way that supports innovation. Without this, there’s a real risk for food industry giants to become obsolete as young spark food companies capture the greater share of interest with their creative ideas and innovative product offerings. If change begins with HR, the entire fabric of the organization can shift to become one with the level of adaptability, creativity and innovation needed to propel it into the future.

Ibeth Echepetelecu is chief human resources officer at Cadence Kitchen, where she leads the search for honest, driven people to join in creating a more delicious and sustainable way to enjoy home-cooked meals. In her career, Echepetelecu has repeatedly played a key role in driving company growth and has established three effective HR departments from the ground up. She is a senior professional in human resources (SHRM-SCP), a certified senior professional in human resources (SPHR), a certified crisis counselor, and a yellow belt Six Sigma.

FDA is investigating illnesses linked to powdered infant formula produced by Abbott Nutrition at a facility in Sturgis, Michigan.

In a news release Thursday, FDA said it is investigating complaints of four infant illnesses from Ohio, Minnesota and Texas.

The affected infant formula brands are Alimentum, EleCare and Similac.

All four infants affected were hospitalized, and Cronobacter—a germ the Centers for Disease Control and Prevention says naturally exists in the environment—may have contributed to a death in one case, FDA disclosed. Three of the infants were ill from Cronobacter and one of the cases is related to Salmonella, according to the agency.

Through an onsite inspection at Abbott Nutrition’s facility, FDA identified “several positive Cronobacter sakazakii results from environmental samples,” the agency said, adding its investigators found “adverse inspectional observations.”

The investigation remains ongoing, and FDA said it will furnish additional consumer safety information when it is available.

“As this is a product used as the sole source of nutrition for many of our nation’s newborns and infants, the FDA is deeply concerned about these reports of bacterial infections,” Frank Yiannas, FDA Deputy Commissioner for Food Policy and Response, said in the news release. “We want to reassure the public that we’re working diligently with our partners to investigate complaints related to these products, which we recognize include infant formula produced at this facility, while we work to resolve this safety concern as quickly as possible.”

Voluntary recall

In a voluntary recall notice of powdered formulas, Abbott Nutrition said it found evidence of Cronobacter sakazakii in “non-product contact areas” of its Sturgis plant during testing. On the other hand, the company found no evidence of Salmonella Newport.

“Importantly, no distributed product has tested positive for the presence of either of these bacteria, and we continue to test,” the company added. “Abbott conducts extensive quality checks on each completed batch of infant formula, including microbiological analysis prior to release.”

FDA reported the products produced at Abbott Nutrition’s Sturgis facility can be found across the U.S. and were probably exported to other countries. The agency is advising consumers not to use Similac, Alimentum or EleCare powdered infant formulas if the first two digits of the code are 22 through 37; the code on the container contains K8, SH or Z2; and the expiration date is 4-1-2022 (April 2022) or later.

Products are not impacted if they don’t meet the criteria above, and the advisory does not apply to liquid formula products or any metabolic deficiency nutrition formulas.

“We know parents depend on us to provide them with the highest quality nutrition formulas," Joe Manning, executive vice president of nutritional products with Abbott, said in the recall notice. "We're taking this action so parents know they can trust us to meet our high standards, as well as theirs. We deeply regret the concern and inconvenience this situation will cause parents, caregivers and health care professionals."

Cronobacter, Salmonella

FDA said Cronobacter bacteria can cause severe, life-threatening infections known as sepsis or meningitis, an inflammation of the membranes that protect the brain and spine.

“Cronobacter infections are rare, but they can be deadly in newborns,” CDC warns on its website. “Infections in infants usually occur in the first days or weeks of life. About two to four cases are reported to CDC every year, but this figure may not reflect the true number of illnesses because most hospitals and laboratories are not required to report Cronobacter infections to health departments.”

Salmonella can cause gastrointestinal illness and fever called salmonellosis, according to FDA. While most people with salmonellosis develop abdominal cramps, diarrhea and fever, more severe cases can result and some may become fatal, the agency said.

“We value the trust parents place in us for high-quality and safe nutrition, and we’ll do whatever it takes to keep that trust and resolve this situation,” an Abbott spokesperson said.

Previous baby food probe 

FDA’s investigation into the powdered infant formula comes about a year after a congressional investigation revealed top-name baby foods contained dangerous levels of toxic heavy metals such as mercury, lead, arsenic and cadmium. That congressional probe led to an avalanche of proposed class action lawsuits against manufacturers of baby food.

FDA last year also released an action plan dubbed “Closer to Zero” to reduce exposure to toxic elements from food for babies and young children. FDA has described such efforts as "complicated and multifaceted."

 

 

 

The findings are key considering the growth of the plant-based food category. As advances in production progress, plant-based is becoming a fundamental type of eating—even among consumers not consciously trying to follow a vegan or vegetarian lifestyle.

Animal fat plays a big role creaminess and mouthfeel that can be lost when sourcing protein from plants. The solution is all-natural, affordable and sustainable, according to the study published in the journal Advanced Functional Materials.
Researchers from Wageningen and at

“We were experimenting with different structures and that’s when the 3D printer came into play,” the researchers wrote. “With that it’s possible to create shapes that have a same build-up as the animal fats we try to replace. Our research wasn’t solely focused on foods by the way; we see this as one of the possibilities. Other uses can vary from replacing synthetic polymers in dental fillers or scaffolds for generating soft tissues.”

The way the structure mimics animal fat, led to focus more on the food part of the paste. The next step is to take the mixture into actual production as one of the ingredients in a plant-based burger. The researchers work on that with the meat analogue industry, and the collaboration focuses on how to tastefully incorporate the fatty protein paste in plant-based meats. The researchers also will explore the possibilities of creating fat fibers and adding vitamins.