Partners James Neale, Trent Taylor and associate Ben Abel are members of McGuireWoods' Products, Environmental and Mass Tort Litigation Department. Nicole Arcodia, a 2019 McGuireWoods summer associate, assisted in writing this article.
When plaintiffs allege that laboratory tests confirm a manufacturer deceptively labeled its food, those manufacturers justifiably believe that they and the courts are entitled to details about those tests. However, a recent decision from the Northern District of California joins a growing body of conflicting case law over whether plaintiffs need to plead details about the lab testing allegedly conducted.
While other courts have held that plaintiffs don't need to provide testing details, judges have been more demanding at the pleading stage when plaintiffs allege manufacturers misstated information in the Nutrition Facts Label. As a result, manufacturers should assess the type of claim made by a plaintiff when determining whether a court may dismiss a complaint for failing to provide details about the lab tests conducted.
Last month, in Robinson v. J.M. Smucker Co., the Northern District of California held that the putative class plaintiff’s complaint survived dismissal despite failing to plead details of the lab testing upon which she relied. In the suit, the plaintiff alleges Crisco's 100% Extra Virgin Olive Oil No-Stick Spray is not truly 100% EVOO based on "extensive clinical testing conducted by a leading laboratory." In the motion to dismiss, Smucker's argued the plaintiff relied upon "unidentified laboratory tests" and failed to compare those tests to the federal standards.
However, in partially denying the motion, the court held that the plaintiff does not need to provide detailed testing information to state a claim. Instead, the court held that the manufacturer’s "objections to the method and sample size of the laboratory testing" were better suited to later stages of the case.
In holding that plaintiffs need not disclose testing details in their complaints, the Robinson court is hardly alone. For instance, in Webb v. Dr Pepper Snapple Group, the putative class alleged that the defendant falsely labeled its Canada Dry Ginger Ale as being "Made from Real Ginger."
In its motion to dismiss, Dr Pepper — who merged with Keurig Green Mountain last year — claimed the plaintiff's failure to include details regarding testing alleged in the complaint didn't satisfy the heightened fraud pleading standard. In denying the motion, the Western District of Missouri held that plaintiffs need not provide specific details about the testing conducted, including who conducted the testing, what it tested for, and what standards were employed. Similarly, in Fonseca v. Goya Foods, the Northern District of California held the plaintiff doesn't need to provide details of the DNA tests used to support the allegation that the manufacturer sold mislabeled squid as octopus.
However, manufacturers have found more success in cases where plaintiffs targeted specific claims in a product's Nutrition Facts Label. For instance, in In re Whole Foods Market, the putative class plaintiff alleged that Whole Foods falsely stated that various Greek yogurt products contained two grams of sugar per serving. In the complaint, the plaintiff relied only on tests done by Consumer Reports, did not allege any other independent testing and failed to provide details about Consumer Reports' tests.
In dismissing the complaint, the Western District of Texas held that FDA regulations provide specific testing methodologies for nutrition labeling and that reliance on a different methodology would therefore be preempted. As a result, the plaintiff's failure to plead the details of Consumer Reports' testing methodologies and whether those tests complied with the FDA's requirements warranted dismissal of the complaint as preempted. Likewise, in Burke v. Weight Watchers International, the plaintiff alleged that Weight Watchers misstated the caloric content of its ice cream bars, the District of New Jersey dismissed a complaint and its general references to laboratory testing as failing to allege compliance with the FDA's testing methodologies.
While the case law may seem confusing and contradictory, a certain pattern has emerged regarding the pleading of lab testing claims in food and beverage cases. Where plaintiffs make generalized allegations regarding the characteristics of a product, courts have allowed claims to survive without providing specifics about the testing conducted at the motion to dismiss stage. However, where plaintiffs attack a specific nutrient claim governed by FDA regulations, like the amount of sugar or calories in a product, courts have been more demanding and have dismissed complaints failing to allege compliance with the FDA's mandated methodologies.
When assessing a complaint and the potential for success on a motion to dismiss, manufacturers should determine the nature of the claim made by the plaintiff and whether a court may dismiss the complaint for a failure to plead details about any testing alleged. If manufacturers are able to argue that a specific FDA testing methodology governs, then their chances of success at prevailing on a motion to dismiss rise considerably.