Frito-Lay and the “Peppering” of Food Co.’s with Labeling Lawsuits

NBC News posted an article today titled “Lawyers Pepper Food Firms With Lawsuits Over Labeling.”  It’s a general overview of the flood of labeling lawsuits, with some notable quotes from consumer “watchdog” groups and plaintiff’s attorneys who are leading the attack against food companies for their labeling practices.

On a related note, another class action suit is challenging the “All Natural” labeling on Frito-Lay’s bean dip on the grounds that it contains genetically modified soy.  See Altman v. Frito-Lay North America, Inc., No. 12-cv-61803 (S.D. Fla.).  The Altman suit follows on the heels of Foust v. Frito-Lay, No. 1:12-cv-21975 (S.D. Fla.) and Berkowitz v. Frito-Lay, No. 1:12-cv-22436 (S.D. Fla.) which target Frito-Lay’s bean dip and “all natural” chips because of GMOs.  The “nearly identical” Foust and Berkowitz suits were found to be related actions and are now pending before the same judge.  And on September 21, 2012, Frito-Lay moved to transfer the Altman suit to the same judge for the exact same reasons.

Frito-Lay wants to include the new lawsuit in a pending motion to transfer the Foust and Berkowitz suits to the Eastern District of New York because of “substantial overlap” between the Florida cases and three earlier-filed and consolidated lawsuits in New York.   See Frito-Lay North America, Inc. “All Natural” Litigation, No. 12-cv-408 (E.D.N.Y).   Frito-Lay asserts that all of these suits have copy-cat complaints relating to the use of GMO’s with “all natural” claims and that they include the same basic allegations and seek the same types of relief.

Notably, one of the New York cases was just transferred to that venue from the Northern District of California.  Plainly then, Frito-Lay wants to have the question of whether it’s deceptive or misleading to use GMO ingredients in a product labeled as “all natural” answered in a New York courtroom.  This makes sense for a host of reasons while also decreasing defense costs.  Moreover, this tactic takes advantage of the principle that, when a plaintiff seeks to represent a nationwide class, her choice of forum receives less deference than in other circumstances.

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