Perkins Coie, Seattle, Wash., released its 2018 Food Litigation Year in Review report. Authored by the firm’s food litigation team, the third annual report analyzes significant verdicts, trends driving lawsuit filings and notable legal developments impacting the food and beverage industry.

With 158 filings, the report reveals that 2018 was one of the most active years for class action filings, and that pace will not slow down this year. Continued success for the “reasonable consumer” defense, courts’ acceptance of formerly rejected damages models and increased attention toward multifunction ingredients and other ingredient labeling are just some of the factors the report examines.

“The plaintiffs’ bar remained incredibly active in 2018, and will likely remain at that level for the foreseeable future,” says David Biderman, partner and chair of the consumer litigation practice. “The district courts’ willingness to allow formerly rejected damages models opens doors for plaintiff class action counsel to craft new theories to advance suits. That, combined with the still-growing number of cases we’re seeing tied to labeling and disclosures, will certainly keep counsel busy in 2019.”

The study goes on to examine the continued filing of class action claims regarding matters on which the industry has faced pushback for years, such as false labeling and slack fill, in addition to the growing issue of corporate responsibility.

“While filing levels are up, so is the degree of skepticism courts are showing to many of these cases,” says Charles Sipos, partner and co-chair of the food litigation practice. “Courts are increasingly willing to take a hard look at these complaints, and will dismiss them out of the gate if the plaintiffs’ theory is far-fetched, or if the science plaintiffs rely on doesn’t support the claims.”

Key findings include the following:

• Class action filings rose again, particularly in New York. There were 13 more class action filings in 2018 than in 2017. Although California still saw the most filings, there was a nearly 4% decrease there in 2018 than the year prior, whereas New York saw a 33% increase and thus revealed a shift toward that jurisdiction.
• False labeling claims rose again. 2018 saw another jump in false labeling claims, with a 16% increase—although that was a notably smaller amount than the 60% increase in 2017. Allegations claiming that labels are deceptive due to the presence of trace pesticides and increasing attacks on dual-function ingredients like malic and citric acid are likely to remain favored targets of plaintiffs’ counsel in 2019.
• The “reasonable consumer” defense continued to bring clarity. Courts’ reliance on the “reasonable consumer” standard remained strong in 2018, as they turned to that defense in lawsuits based on improbable definitions of labeling terms.