Welcome to the inaugural issue of Greenberg Traurig’s Consumer Compass newsletter – your guide to navigating the legal landscape of the ever-evolving consumer products industry. Each issue delivers the latest news, emerging trends, and must-know highlights, along with savvy insights designed to keep you ahead of the curve.
WHAT WE’RE COVERING:
Featured Insights
- Implied Preemption Following Davidson v. Sprout Foods, Inc.
- SCOTUS Class Action Cases | Spring 2025
- HHS and FDA Announce Intention to Phase Out All Synthetic Food Dyes; Approve Three ‘Natural’ Food Dyes
- PFAS Prohibition Law Updates
- Prop 65 and Other State-Level Chemical Regulation
- EPR Packaging Update
- EPR and Textiles
- SB 343 – California’s Truth in Recycling Law
- Compostable Claims in California
- Post-Consumer Recycled Statutes
GT Alerts
GT Podcasts
FEATURED INSIGHTS
Implied Preemption Following Davidson v. Sprout Foods, Inc.
Nilda M. Isidro | Gina Faldetta
In Davidson v. Sprout Foods, Inc., 106 F.4th 842 (9th Cir. 2024), the Ninth Circuit permitted claims under the Sherman Law, California’s analogue to the federal Food, Drug, and Cosmetic Act (FDCA). Plaintiffs alleged the defendant produced pouches of baby food with labels on the front of the package conspicuously stating the amount of nutrients and brought claims under California’s Unfair Competition Law (UCL) for violations of the Sherman Law. The District Court for the Northern District of California dismissed the claim, holding it was impliedly preempted because the state law claim was derived from the FDCA, which could only be enforced by the federal government.
On appeal, the Ninth Circuit reversed. A divided Ninth Circuit panel held that plaintiffs’ state law food-labeling claims seeking to privately enforce the Sherman Law were not impliedly preempted under Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001), because plaintiffs were claiming violations of the Sherman Law, not the federal FDCA. The court held that the FDCA does not preempt claims for violations of parallel state law duties. The Supreme Court denied a petition for writ of certiorari.
In the wake of the Ninth Circuit’s decision, a number of cases within the circuit have followed the precedent set by Davidson, holding that state law food-labeling claims under the Sherman Law were not impliedly preempted by the FDCA.[1]Davidson—which is in conflict with the holdings of several other circuits—has not been followed by courts outside the Ninth Circuit. See, e.g., DiCroce v. McNeil Nutritionals, LLC, 82 F.4th 35, 41 (1st Cir. 2023), cert. denied, 144 S. Ct. 1382, 218 L. Ed. 2d 443 (2024) (affirming dismissal and holding federal law preempts state law claims based on Massachusetts state law that specifically incorporated FDCA food labeling regulations).
SCOTUS Class Action Cases | Spring 2025
Nilda M. Isidro | Gina Faldetta
Lackey v. Stinnie, 145 S. Ct. 659 (2025)
Award of preliminary injunction did not render plaintiffs “prevailing part[ies]” eligible for attorney’s fees under 42 U.S.C. § 1988(b).
Virginia drivers whose licenses were suspended due to their failure to pay court fines brought a class action suit against the commissioner of the Virginia Department of Motor Vehicles under 42 U.S.C. § 1983, arguing that the Virginia statute requiring suspension of their licenses was unconstitutional. The district court preliminarily enjoined the commissioner from enforcing the statute. But before the case reached final judgment, the Virginia General Assembly repealed the challenged law, rendering the action moot. The question presented to the Supreme Court was whether the drivers were “prevailing part[ies]” who qualify for an award of attorney’s fees under § 1988(b).
The Supreme Court held that, because the drivers gained only preliminary injunctive relief before the action became moot, they do not qualify as “prevailing part[ies]” eligible for attorney’s fees under § 1988(b). The Court reasoned that “[i]n awarding preliminary injunctions, courts determine if a plaintiff is likely to succeed on the merits—along with the risk of irreparable harm, the balance of equities, and the public interest,” and because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer “prevailing party” status. The Supreme Court also explained that this conclusion served the interests of judicial economy by reducing the risk of “a second major litigation” over attorney’s fees.
Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 145 S. Ct. 41 (2025)
Post-removal amendment can divest a federal court of jurisdiction.
A consumer brought a putative class action in Missouri state court against manufacturer of prescription dog food, alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA), Missouri Merchandising Practices Act (MMPA), and state antitrust law. The manufacturer removed the case, and the district court remanded to state court. On the manufacturer’s petition for review, the Eighth Circuit vacated, finding that, although the consumer did not plead independent claims under FDCA, federal-question jurisdiction existed because the meaning of relevant FDCA provisions was thoroughly embedded in, and integral to, success of the consumer’s state-law claims. The consumer then amended, so the complaint no longer mentioned or asserted claims under the FDCA, and then requested remand to state court. After denying remand, the district court dismissed the complaint on the merits. The consumer appealed, and the Eighth Circuit vacated and ordered remand to state court. The Supreme Court granted certiorari to resolve a circuit split regarding whether a post-removal amendment can divest a federal court of jurisdiction.
In a unanimous opinion, the Supreme Court held that the post-removal amendment of the complaint to remove all federal questions deprived the district court of supplemental jurisdiction over remaining state-law claims. The Court held that with the loss of federal-question jurisdiction, a federal court loses its supplemental jurisdiction over the state-law claims.
Read more in GT’s Class Action Litigation Newsletter | Spring 2025.
HHS and FDA Announce Intention to Phase Out All Synthetic Food Dyes; Approve Three ‘Natural’ Food Dyes
On April 22, 2025, the U.S. Dept. of Health and Human Services (HHS) and the U.S. Food and Drug Administration (FDA) held a press conference to announce a series of actions to “phase out” petroleum-based synthetic dyes used in food. Those actions related to food dyes include the following:
- Initiating the process to revoke authorization for two synthetic food dyes—Citrus Red No. 2 and Orange B—in the coming months.
- Working with industry to eliminate six additional synthetic food dyes—FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2—from the food supply by the end of 2026.
- Authorizing new natural color additives, while accelerating the review and approval of others.
- Requesting food companies to remove FD&C Red No. 3 sooner than the current 2027-2028 deadline.
Following the April 2025 press conference, the FDA announced May 9, 2025, that it approved three “natural” color additive petitions for foods. The approved color additive petitions include the following:
- Galdieria extract blue, a blue color derived from a form of red algae. The FDA approved its use in a wide range of nonalcoholic beverages, breakfast cereal coatings, candy, ice cream, and a variety of other desserts.
- Butterfly pea flower extract, another blue color produced through the water extraction of the dried flower petals of the butterfly pea plant. While already approved for use in beverages, candy, ice cream, and yogurt, the FDA expanded its approval to use in cereals, crackers, and other snack products.
- Calcium phosphate, a white color approved for use in ready-to-eat chicken products, white candy melts, doughnut sugar, and sugar for coated candies.
All of these actions underscore the current administration’s intent to transition the food supply away from synthetic petroleum-based dyes to more naturally sourced color ingredients.
PFAS Prohibition Law Updates
Will Wagner | Madeline Orlando
Chemical regulation in the consumer products space continues to increase, with significant developments focused on regulating per- and polyfluoroalkyl substances (PFAS) in various categories of consumer products. There are many dozens of laws across various states that already regulate or prohibit PFAS in various product categories, with Maine implementing a ban on intentionally added PFAS in all products in 2032 subject to a feasibility analysis.
Minnesota’s PFAS law came into effect this year, starting with a ban on the sale or distribution of various groups of consumer products with intentionally added PFAS and working up to a ban on intentionally added PFAS in all products beginning in 2032. Almost immediately, an industry group challenged the law, alleging that the ban on cookware violates the constitution. That case remains pending.
California and Colorado also have passed new laws banning the sale or distribution of certain consumer products with intentionally added PFAS start in January 2025. New Mexico became the newest state to ban intentionally added PFAS in consumer products (but exempting fluoropolymers). Following in the footsteps of Maine and Minnesota, New Mexico’s ban is a phased approach with its first prohibitions taking effect in 2027 and a blanket prohibition on the sale of all products with intentionally added PFAS commencing in 2032. Finally, Vermont passed a consumer products PFAS ban that expands a previously enacted prohibition.
Prop 65 and Other State-Level Chemical Regulation
Will Wagner | Madeline Orlando | Sean A. Newland
The proliferation of Prop 65 chemical listings and notices of violation continue. Bisphenol S (BPS) became penalty-eligible at the end of 2024 and has resulted in dozens of retailers and restaurants receiving notices of violation concerning BPS in thermal receipt paper. BPS enforcement could also become prevalent in other areas including textiles and food packaging.
In foods, there continues to be significant enforcement around lead and cadmium. However, food companies may no longer need to worry about acrylamide under Prop 65, as a court in the Eastern District of California recently permanently enjoined Prop 65 acrylamide cancer warnings on a First Amendment basis.
In cosmetics, titanium dioxide litigation may be approaching its end, with the Eastern District of California issuing a preliminary injunction preventing new titanium dioxide Prop 65 lawsuits on the basis of the compelled warning violating First Amendment speech rights. In its place, plaintiffs are now focusing on the chemical diethanolamine (DEA), with dozens of lawsuits being filed against much of the cosmetic industry this year.
In terms of new chemical listings, vinal acetate was listed in January of this year, with potential enforcement commencing in early 2026. Additionally, the International Agency on Cancer Research (IARC) has designated isoeugenol and talc as 2B carcinogens, which may trigger future Prop 65 listings.
Outside of Prop 65, states continue to regulate other chemicals in consumer products such as cosmetics. Washington’s HB 1047, the Toxic-Free Cosmetics Act (TFCA), took effect in 2025, prohibiting the sale of cosmetics containing certain chemicals, including a one part per million lead restriction. The Washington Department of Ecology is also currently engaged in a rulemaking under the TFCA to restrict formaldehyde in cosmetics. Additionally, Minnesota continues to enforce its restrictions on lead and cadmium in consumer products, including cosmetics, apparel, and jewelry, which prohibit the sale of subject consumer products containing more than 90 parts per million of lead or 75 parts per million of cadmium.
EPR Packaging Update
Will Wagner | Madeline Orlando
Extended Producer Responsibility (EPR) laws continue to expand across the United States, posing operational challenges for consumer-packaged goods companies by shifting the cost of waste management from municipalities to producers of single-use packaging. Maryland and Washington passed their own EPR packaging laws, joining California, Colorado, Maine, Minnesota, and Oregon to total seven states that have full EPR packaging programs in place.
The first reporting deadline was in Oregon on March 31, 2025, with producers reporting their packaging data to Circular Action Alliance (CAA), which administers EPR programs in several states. Recognizing the significant requirements that producers face, CAA announced a grace period through April 30, 2025, for producers to submit their Oregon reports. CAA finalized the Oregon base fees for this initial reporting cycle and have started issuing invoices to producers for their respective fees based on the 2024 reporting data. The next reporting deadline is July 31, 2025, in Colorado.
California’s EPR program faced a major setback in March when Gov. Gavin Newsom ordered CalRecycle to restart its rulemaking process for its regulations implementing California’s program. These regulations not only define producer activities when it comes to reporting, but also compliance measures related to California’s additional source reduction and recycling requirements under its EPR law. CalRecycle is now in the process of restarting its rulemaking, despite receiving continued pushback from both lawmakers and industry about concerns over the agency’s implementation of the law. In light of this regulatory uncertainty, CAA recently announced that California’s initial reporting deadline will be pushed back from Aug. 31, 2025, to Nov. 15, 2025.
EPR and Textiles
Will Wagner | Madeline Orlando
In addition to its packaging EPR law, in 2024 California passed a textile EPR law, SB 707, which created the first EPR program for apparel and textiles in the United States. Similar to the packaging EPR laws, SB 707 places the cost and burden of recycling covered textile materials on the producers of the textile items, requiring them to join a stewardship organization to manage the collection and recycling of apparel and textile products. CalRecycle is tasked with overseeing this program and is holding a workshop July 17, 2025, to discuss its next steps regarding rulemaking and program oversight. Read more about this development in our June 2025 GT Alert.
SB 343 – California’s Truth in Recycling Law
Will Wagner | Madeline Orlando | Sean A. Newland
Companies must begin considering compliance with California’s SB 343, the Truth in Recycling law, which concerns recycling advertising on products and packaging sold in California. SB 343 creates new standards for determining when products and packaging can be labeled as recyclable and use the familiar “chasing arrows” symbol. The law prohibits the use of any recyclability indicators unless the product or packaging meets the law’s criteria, and violations can plausibly result in class action lawsuits or state enforcement actions.
Pursuant to SB 343, CalRecycle was tasked with studying how materials are collected, sorted, sold, or transferred for recycling in California and publishing a report that compiles these findings. Under the statute, publishing this report triggers an 18-month compliance deadline for parties to start meeting the new criteria. CalRecycle published this report, the “Material Characterization Study,” April 4, 2025, which means that businesses have until Oct. 4, 2026, to bring their products and packaging into compliance with SB 343.
It is unclear whether CalRecycle’s Material Characterization Study is merely the agency’s interpretation of its data on California’s recycling practices, or whether the study provides legally binding categorizations of materials as recyclable. This leaves uncertainty around whether and how companies can comply with SB 343.
Compostable Claims in California
Will Wagner | Madeline Orlando | Sean A. Newland
California’s AB 1201, which already established the nation’s most stringent requirements for compostable labeling, provides that starting Jan. 1, 2026, any product or packaging labeled as “compostable” or “home compostable” in California must qualify as an allowable agricultural organic input under the U.S. Department of Agriculture’s National Organic Program (NOP). Currently, this requirement essentially creates a de facto ban on labeling plastic and polymer-based synthetic packaging and products as compostable because most do not meet the NOP requirements. However, under the statute, CalRecycle can delay this restriction for products and substances that will soon become allowable agricultural organic inputs under the NOP. The agency announced June 11 that it is extending the compliance date until June 30, 2027, for synthetic substances that otherwise satisfy the requirements for lawfully being labeled as “compostable.”
Post-Consumer Recycled Statutes
Will Wagner | Madeline Orlando
Along with other recycling and chemical restrictions, multiple states have passed legislation requiring plastic products to use certain amounts of post-consumer recycled (PCR) content in an effort to reduce virgin plastic use. Most of the PCR laws apply just to plastic beverage containers, but states like New Jersey and Washington have expanded the PCR required content minimums to apply to a broader range of rigid plastic containers.
Washington’s law specifically also applies to personal care products and household cleaning products, which as of Jan. 1, 2025, are now subject to a 15% PCR minimum, which increases to 25% in 2028 and 50% in 2031. The Washington Department of Ecology has begun actively enforcing the first round of its PCR minimum threshold requirements (which included required PCR minimums for plastic beverage containers and trash bags) as subject entities who did not meet the initial thresholds faced significant penalties. The Department of Ecology recently fined 23 plastic producers a combined $277,000, calculated based on each company’s 2024 sales in the state and how far off the businesses were from required thresholds. This comes after the Department of Ecology issued an initial round of fines to 35 companies last October, which totaled $416,554.
GT ALERTS
Eighth Circuit Vacates FTC’s ‘Click-to-Cancel’ Rule
Timothy A. Butler | Matthew M. White | Tessa L. Cierny
On July 8, 2025, the U.S. Court of Appeals for the Eighth Circuit vacated the Federal Trade Commission’s “Click-to-Cancel” Rule, which was intended to govern negative-option offers.
In vacating the rule, the Eighth Circuit held that the FTC failed to comply with procedural requirements governing its rulemaking, and thus deprived the petitioners—comprised of various industry associations and individual businesses—of a fair opportunity to participate in the rulemaking process. Read more.
New York Retail Employers, Take Note: New Retail Worker Safety Protection Requirements
John R. Richards | Jade Yee | Nicholas A. Corsano
Employers with ten or more retail employees in New York State (Covered Employers) will now have to comply with the New York Retail Worker Safety Act (the Act). The Act, effective June 2, 2025, requires that Covered Employers develop and adopt a retail workplace violence prevention policy and provide their retail employees with retail workplace violence prevention training. Read more.
Recent Developments at the Consumer Product Safety Commission: Potential Changes and Implications
The U.S. Consumer Product Safety Commission (CPSC) is undergoing multiple shifts that render its future uncertain. Included in this Alert is a high-level chronology of events that have occurred over the last few months. Read more.
FDA Finalizes a New Definition of ‘Healthy’ for Food Labeling
Lindsay N. Aherne | Peter A. Arhangelsky, Esq. | Justin J. Prochnow
On Dec. 19, 2024, the U.S. Food and Drug Administration (FDA) announced a long-awaited final rule revising the definition of “healthy” when used in the labeling of food products. Read more.
Influencer Marketing Practices Under Scrutiny in Europe
Influencer activities in the European Union may be deemed unfair market practices, potentially harming the brands they promote.
The influencer marketing industry has experienced significant growth, with its global value reaching approximately $24 billion in 2024. Brands often turn to this form of advertising, not always realizing that influencer activities may be scrutinized for compliance with consumer protection laws. Enforcement in Europe is increasing, and non-compliant actions may harm the reputation and credibility of both influencers and the brands they promote. Read more.
Class Action Litigation Newsletter | Spring 2025
Multiple GT Authors
This GT Newsletter summarizes recent class-action decisions from across the United States. Read more.
GT PODCASTS
Insights on Chemical Litigation As It Relates to PFAS, Heavy Metals, and Prop 65
Adil M. Khan | Gregory A. Nylen | Will Wagner
Will Wagner joins hosts Adil Khan and Greg Nylen for a discussion on consumer claims related to chemical litigation, specifically focusing on false advertising and the nuances of Prop 65 enforcement in California. Listen.
From Slam Dunks and Big Tech to Launching New Brands: Alan and Maxine Henderson’s Journey into Food & Beverage Entrepreneurship
In this episode of Greenberg Traurig Legal Food Talk, host Justin Prochnow sits down with Alan and Maxine Henderson, a dynamic husband-and-wife duo in the food and beverage industry. Listen.
Overview of Washington’s 2025 Legislative Session: Tax Policy Challenges and Business Impacts
In this episode of GeTtin’ SALTy, host Nikki Dobay is joined by Max Martin, Director of Tax and Fiscal Policy at the Association of Washington Business, to discuss Washington’s legislative session and its implications for state tax policy. Listen.
GeTtin’ SALTy & Beyond: Exploring Extended Producer Responsibility Laws
Nikki E. Dobay | Madeline Orlando
In this episode of Getting’ SALTy & Beyond, Nikki Dobay is joined by GT attorney Madeline Orlando for a conversation about the emerging landscape of Extended Producer Responsibility (EPR) laws. Listen.
[1] See Ottesen v. Hi-Tech Pharms., Inc., No. 19-CV-07271-JST, 2024 WL 5205539, at *7 (N.D. Cal. Dec. 23, 2024); Swartz v. Dave's Killer Bread, Inc., No. 4:21-CV-10053-YGR, 2024 WL 4614551, at *8 (N.D. Cal. Sept. 20, 2024); Miller v. Nature's Path Foods, Inc., No. 23-CV-05711-JST, 2024 WL 4177940, at *6 (N.D. Cal. Sept. 11, 2024); Forrett v. W. Thomas Partners LLC, 746 F. Supp. 3d 780, 788 (N.D. Cal. 2024); Shin v. Sanyo Foods Corp. of Am., No. 2:23-CV-10485-SVW-MRW, 2024 WL 4467603, at *9 (C.D. Cal. Aug. 13, 2024); Grimes v. Ralphs Grocery Co., No. CV 23-9086 TJH (PDX), 2024 WL 5470432, at *2 (C.D. Cal. Aug. 9, 2024).