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Class Actions are one of the toughest and most dangerous areas of food law. Sometimes you need to beat the adversary in court and sometimes you have to beat them in the street. Here are some examples of our successes.

Class Action Against Trader Joe’s Dismissed: Our client supplies truffle flavored olive oil to Trader Joe’s, who was sued in a federal court class action regarding the accuracy of Trader Joe’s label. The litigation raged between Trader Joe’s attorneys and plaintiff’s lawyers for some months with various expensive pre-trial motions being made by both sides. Finally, our client was served as a defendant and it became time for us to get involved. Instead of filing an answer to the complaint, we filed a motion to dismiss the entire litigation. The federal judge agreed with us and the case was dismissed as to all parties and the litigation ended. Plaintiff filed an appeal, but abandoned it. Case over. Tyoka Brumfield v. Trader Joe’s Company, United States District Court for the Southern District of New York, Civil Action No. 1:17-cv-03239.

Class Actions Abandoned by Plaintiff Without Litigation or Settlement Payment: Before a class action is filed, the plaintiff sends a “demand letter,” to the target demanding various kinds of action. Our strategy includes responding to that letter on behalf of our client detailing the problems with plaintiffs’ case and how we intend to derail it. About 20% of the time, plaintiff abandons the case without filing a lawsuit and without receiving any settlement money. They just give up.

Using FDA Against The Plaintiffs: A dietary supplement company was sued in a Federal Court class action for allegedly exaggerating product benefits. Plaintiffs’ strategy was to have a trial that was a battle of conflicting experts’ opinions, leaving the verdict a multi-million dollar “crapshoot” in the hands of unpredictable jurors. Companies cannot withstand that kind of risk and settle for millions of dollars. The company asked The Food Lawyers® to defend. We filed a motion to move the case to the FDA where it would be decided by government scientists rather than lay jurors. The Food Lawyers® have our own team of food scientists who know how to fight those battles. Plaintiffs knew their strategy was thwarted. Rather than oppose our motion, they agreed to settle the case in exchange for reimbursement of a portion of their attorneys’ fees. The case was wrapped up quickly to the client’s great satisfaction at a fraction of the cost that had been budgeted for the matter.

Battle In The Streets: Food label law requires foreign ingredients to be identified as not-from-US under certain circumstances. Our client distributed thousands of 20 oz bags of cashews, some of which didn’t mention they came from Africa due to a misprint. A law firm specializing in foreign ingredient labeling told us where they bought the product and threatened to file a class action. The Food Lawyers told the client to have its sales people go to the store that night where opposing counsel bought the cashews and replace them with properly labeled product. We then told the threatening attorneys that their class action would fail because they couldn’t fulfill their obligation of identifying which consumers spread throughout the U.S. got the properly labeled bags and which ones got the misprints. They gave up their case and we resolved a class action at almost zero cost.

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Why Prop 65 Matters for Your F&B Business

Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act, requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. For food, beverage and supplement businesses, compliance is not just a legal obligation but a crucial step in safeguarding your reputation.

Our Expertise Is Your Shield

At The Food Lawyers®, we understand the unique challenges the food industry faces in Prop 65 compliance. Our seasoned team of legal experts specializes in providing comprehensive Prop 65 defense strategies tailored to the specific needs of your business. We stay ahead of the regulatory landscape to ensure your operations are not only compliant, but also strategically positioned to mitigate risks.

What Sets Us Apart

1. Industry Insight: Our team is well-versed in the complexities of the food industry, allowing us to provide nuanced and effective Prop 65 defense strategies.
2. Proactive Compliance: We don’t just react to legal challenges; we work with you proactively to establish robust compliance measures, reducing the risk of future issues.
3. Litigation Expertise: In the event of legal disputes, our experienced litigators are ready to defend your business vigorously. Let’s just say the Prop 65 plaintiffs know us by name.
4. Scientific Acumen: One of our Prop 65 defense attorneys is a PhD in Molecular Biology from Johns Hopkins University. Our resident food scientist is a PhD in Organic Chemistry and was formerly responsible for food testing for General Mills. We bring focused science to bear in defending Prop 65 cases.

How We Can Help

• Risk Assessment: Identifying potential risks and developing proactive strategies to address them
• Comprehensive Compliance Plans: Crafting tailored compliance plans to meet the unique needs of your food business
• Litigation Defense: Vigorous defense in legal disputes, utilizing our deep understanding of Prop 65 laws
• Training and Education: Equipping your team with the knowledge and tools to maintain ongoing compliance

Your success is our top priority. We are committed to partnering with food industry businesses like yours to ensure compliance with Prop 65 regulations. Don’t let legal challenges compromise your success – let us be your trusted advocates in Prop 65 defense.

Litigation is where the rubber meets the road. Sometimes it requires negotiation, other times it requires toughness, and most often, it require both. The Food Lawyers are proud of our customized strategies and our record defending and protecting our clients’ rights. Some examples of our successes.

Trade Secrets Protected. Our client alleged that some of its former employees had joined a larger competitor and was using the client’s trade secrets to produce exact “copycat” competitive products that they were offering at a lower price to our client’s customers. If the former employees plan worked, our client was out of business. This was true “bet the company” litigation. We filed suit and the case was tried over 62 court days to a Los Angeles jury. We obtained a permanent injunction and a twenty-eight million dollar award of damages and attorneys’ fees in favor of our client. We collected every dime of the damages for our client.

Trademark Litigation: Our client asked us to obtain federal trademark registration of a new brand they had created. Our research revealed another company had already federally registered the same brand and it was therefore unavailable for our client. The client said they had strong feelings about it and asked us to see if the brand was available for purchase from the current owner. We looked at the brand owner’s public record filing and something just didn’t seem right. We hired private investigators to assist us and discovered the brand owner obtained his federal trademark registration fraudulently by falsely swearing he had used the brand in interstate commerce. We filed a lawsuit to cancel his registration on grounds of fraud and filed a trademark registration application for our client. We then offered our adversary a nominal sum to abandon his rights and let our client register the brand. Our adversary “doubled down,” by committing more fraud. We uncovered that fraud too and told him that his choices were simple: He could take a few dollars and walk away or he could spend a lot of money on attorneys’ fees to lose the litigation and then have nothing. We had him boxed in and he knew it. He took a tiny amount of money and vanished. The client got to register its trademark and is very happy.

Knowing Who To Sue: A Vietnamese company shipped $185,500 of seafood to a San Francisco retailer who refused to pay, claiming the goods were, “substandard.” Another law firm told the Vietnamese company they needed to sue the San Francisco retailer, but their case was impossible to win because what constitutes “substandard goods” can be a difference of opinion and witnesses would have to come to California from Vietnam to press the matter. The Vietnamese company turned to The Food Lawyers. International purchases are paid for via an arrangement where the purchaser’s bank promises to pay the amount due the foreign seller upon the bank’s receipt of documents proving delivery of the goods to the purchaser. As long as the documents are in order, the bank must pay – – even if the goods are defective. We asked our Vietnamese client about this and were told the bank refused to honor the delivery documents based on instructions from the Purchaser (something the Purchaser had no right to do). We asked to see the Vietnamese company’s delivery documents – – they were perfect. We told the Vietnamese company to forget about suing the San Francisco retailer; we should sue the bank for refusing to honor the delivery documents. The Food Lawyers demanded the bank honor the delivery documents and threatened to sue if payment was not made in 7 days. The bank paid us $185,000 on the 7th day. The whole process took two weeks.

Success with regulatory agencies depends on technical knowledge and mutual respect with the Agency’s professionals. We are proud of the relationships we have developed with federal, state and local regulatory agencies. The Food Lawyers® practices law, and represents our clients, before The United States Food and Drug Administration, United States Department of Agriculture, and numerous state and local regulatory agencies inside and outside California. Our record before these agencies is without equal. No food label we have approved has ever been challenged by a regulatory agency or been attacked in a class action. Some other examples of our successes:

FDA Grants The Food Lawyers’ Konjac Dietary Fiber Petition. Our client produces foodstuffs containing konjac – – a Japanese yam rich in dietary fiber. Although it has been eaten in Japan for over 1,000 years, it was not recognized by the FDA as containing dietary fiber. This prevented our client from labeling its konjac products as containing dietary fiber. The Food Lawyers® petitioned the FDA to have konjac recognized as a dietary fiber in the United States. One of our client’s competitors filed an opposition to The Food Lawyers’ petition, requiring us to file a rebuttal to the opposition. The FDA agreed with our petition and konjac is now recognized as dietary fiber, greatly increasing the value and competitiveness of our client’s products.

FDA Grants The Food Lawyers’ Allulose Calories Petition. Our client sweetens its health conscious products with allulose, an artificial sweetener that is low in calories and does not cause tooth decay. Under FDA rules then in effect, food labels were required to report they contained 4 calories per gram of allulose. The Food Lawyers’ research found the correct caloric count to be 0.4 calories per gram. In a product containing 20 grams of allulose, this would reduce the calorie count from 80 calories to 8 calories. The Food Lawyers petitioned FDA to change federal law and reduce the calorie count to 0.4 calories per gram. The FDA granted the petition and is rewriting federal law in accordance with our recommendations.

FDA Acknowledges Oat Hull Fiber As Dietary Fiber. A client’s operations produces oat hulls as a byproduct. The hulls could be sold as a food ingredient if they could be labeled as dietary fiber. There is no mechanism for having FDA identify oat hulls as dietary fiber and many potential customers said they would buy the hulls if FDA identified them as dietary fiber. The FDA was soliciting public comments on various dietary fiber issues and The Food Lawyers took the opportunity to submit over 200 pages of information regarding oat hulls. FDA acknowledged our submission and stated that oat hulls are composed of dietary fiber. Our client’s “byproduct” had now become a valuable revenue stream.

USDA Approves Blend Of Oat Hull Fiber And Oat Bran. A client developed an innovative combination of oat hull fiber and oat bran that helps meat remain moist during cooking. The Food Lawyers petitioned the United States Department of Agriculture (“USDA”) to have the new ingredient approved for use in meat products. USDA has informed The Food Lawyers that the petition will be granted and the ingredient will be a USDA authorized ingredient for use in meat products.

With decades of hands on experience working with hundreds of food companies around the world we’ve developed expertise in a number of areas including:

• Regulatory – FDA, USDA, Citizen Petitions and Public Comments, FDA Warning Letters, FDA Red List, etc.
• Labeling – FDA, USDA and DSHEA claims and labeling compliance.
• Trademarks, Licensing and Trade Dress – Developing and protecting trademarks for food products.
• Trade Secrets – Protecting trade secrets for companies throughout the food manufacturing and delivery system. Implementing trade secret protection programs that make every one of your employees into a “Trade Secret Watchdog.”
• Co-Packing – Representing both co-packers and the customers that buy from them.
• Food Processing Equipment – Developing specifications, negotiating leases/purchases, and arranging financing including capital leases, progress payments, etc.
• Distribution – Handling distribution issues arising from a company’s own channels, independent distributors and food brokers.

We have successfully defended and disposed of Federal Court food class actions. In one case we obtained a multi-million judgment and permanent injunction for a clients in a trade secret case. In another case we overcame the government’s claim that our food client’s marketing plan violated unfair marketing practices acts. The marketing plan is now the backbone of our client’s business. We prepared a secured debt/stock option securities offering that raised millions of dollars while preserving our client’s voting control of the company. In another case our client created a trademark that would have broad appeal to its customers, but our client didn’t know if the trademark was available for its use. Our team researched the trademark and found it had been use sporadically by a distant competitor who had obtained federal registration. We filed suit to cancel the registration on grounds of trademark abandonment. When the matter was concluded, our client was the owner of the trademark.

We could go on, but the point is we’d like to put this broad and deep experience to work for you.

Getting your information in front of the right people is only part of effective lobbying. We think acquiring information is the key. Knowing what’s an empty rumor and what’s real. Knowing where things are happening and where they aren’t. Knowing who’s important and who’s really important. Once you know these things, you can set your plan.

Our full time Washington, D.C. lobbyist is an attorney with more than 30 years of legislative and regulatory government experience working for and with FDA, FTC, Capitol Hill and the Executive branch. Washington is a town of contacts, and when you need to take action – – proactive or reactive – – it’s already too late for you to go there. You have to already be there. And that’s where we are.