Muehlberger and Settles Discuss Modern Consumer Protection Landscape in Law360 Expert Analysis

Shook, Hardy & Bacon Class Actions & Complex Litigation Co-Chair  Jim Muehlberger and Agribusiness & Food Safety Associate Jara Settles discuss the modern consumer protection landscape in a January 2, 2015, expert analysis published in Law360. Noting that food lawsuits "tend to garner significant notoriety," the authors focus on recent litigation against Whole Foods Market Inc. alleging that the health-food purveyor "benefited from misleading labeling claims on almond milk," which a third-party certified as free of ingredients made with genetically modified organisms (GMOs). Michelle Richard v. Whole Foods Market California Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cnty., filed Nov. 7, 2014).

"In a long line of consumer protection putative class actions aimed at food companies, Richard is somewhat unique in targeting a retailer," explain Muehlberger and Settles. "In most situations, plaintiffs have targeted the manufacturers of food and beverage products they deem to be improperly labeled… As a retailer, Whole Foods likely had no hand in the labeling or certification of Blue Diamond’s almond milk products."

With companies and retailers paying to defend against "the most minimal and theoretical infractions," the legal landscape now resembles caveat venditor: "Let the seller beware." As the authors conclude, "If the plaintiff in Richard is successful in extending liability to Whole Foods, a retailer, the floodgates of litigation will likely swing open in jurisdictions already inundated with food and beverage consumer protection lawsuits… When businesses face costly class actions and a devil’s nightmare of compliance hassles, consumers ultimately bear the cost of litigation through increased prices."