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5 Trends to Watch: 2023 Food Industry Litigation

  1. Fate of Statutory Damage Awards Uncertain in Class Actions: Will statutory damages available under New York law in class actions (but only in federal court) survive due process challenges? And, if so, will they be limited to $50 per class member, $50 per purchase, or, as plaintiffs have advocated, an aggregate of $550 per purchase? And will the Second Circuit lead in deciding this issue of New York law, or will it be developed in other circuits?

  2. Will Federal Courts’ Taste for Vanilla Litigation Continue? Will 2023 see the end of cases based on the theory that “consumers believe vanilla flavor must come only from the vanilla bean”? Or will the proponents of this theory merely move on to new jurisdictions where they have not yet worn out their welcome.

  3. Ingredient Theories: Out with the Old and in with the – Old? We thought we’d left some theories behind, like excessive slack fill, malic acid as a flavor, citric acid as a preservative. But these theories were dusted off in 2022. Last hurrah or second life? Time will tell.

  4. Price Premium Claims Struggle in High Inflation Environments: How will courts address conjoint analyses that attempt to isolate and measure retail price premiums during high inflation? Interest rates may come down before this issue is sorted out.

  5. Food Labeling Claims May Seek New Territory: Food labeling claims have worked their way through every food aisle in the supermarket. Will plaintiffs be successful in branching out to other parts of the store as they attempt to adapt the same basic claims to other consumer products? 

About the Author

Rick L. Shackelford is Co-Chair of Greenberg Traurig, LLP’s Food, Beverage & Agribusiness Practice. He focuses on complex litigation in numerous fields, including consumer class actions, product liability, false advertising, bankruptcy, securities, insurance, real estate and commercial law. Rick has considerable experience in consumer class action litigation, having been involved in class actions in federal courts in several states.