No Ginger in Ginger Ale – “Nuisance Litigation” Against Food Manufacturers Continues to Rise

Posted by on August 28, 2018

On July 10, 2018, a federal lawsuit was filed contending that Canada Dry and its parent company Dr. Pepper Snapple, Inc. misled customers by falsely advertising “Made from Real Ginger”. This suit is the latest among several brought against the company asserting that customers believed Canada Dry Ginger Ale to have health benefits because it contained real ginger and was a healthier alternative to other soft drinks. Fletcher v. Dr. Pepper Snapple Group et al. represents the most recent in an ever-growing number of class action and private lawsuits against food manufacturers.

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Labels such as “all natural”, “made with real fruit”, and “reduced calories” attract customers, but are also targets for litigation. According to a 2017 report by the U.S. Chamber Institute for Legal Reform, The Food Court: Trends in Food and Beverage Class Action Litigation, food-related litigation has surged from approximately 20 cases in 2008 to 425 active cases in 2016, with 170 cases representing new filings. U.S. district courts in California, New York, Florida, and Illinois are home to more than three-quarters of the food class action lawsuits in the federal court system. The U.S. Chamber Institute reports: “Aside from federal courts in these states, what is extraordinary is the near absence of food class action lawsuits in most other jurisdictions, even when the same products are sold there”.

Such cases typically assert that food makers mislead customers and violate federal regulations by improperly labeling products. Plaintiffs lawyers are relying more and more heavily on testing to allege that food products include (or do not include) certain ingredients, rendering the label inaccurate and deceptive. “All natural”, “no preservatives”, and product origin are some of the most commonly contested labelling claims.

So, in a world where lawsuits are filed because Kellogg Froot Loops cereal does not contain real fruit (California, 2010), Chobani Greek Yogurt is not made with ingredients from Greece (New York, 2014), and Subway Sandwich Shop footlong subs are only 11-11.5 inches long (New Jersey, 2016), how is legitimate consumer protection reconciled with frivolous litigation?

New Jersey Civil Justice Institute has several suggestions for New Jersey (but certainly applicable to all states), including: requiring plaintiffs to 1) prove that they relied on the allegedly misrepresented information when they purchased the product (or service) and 2) ask for their money back (or alleged fraud fixed) before bringing a lawsuit. Such relatively simple practices would ensure that consumer protection laws appropriately penalize deceptive manufacturing practices and protect consumers without encouraging more nuisance litigation.

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