Silverman Publishes “In Search of the Reasonable Consumer: When Courts Find Food Class Action Litigation Goes Too Far”

Shook Partner Cary Silverman has authored an article for the University of Cincinnati Law Review arguing for a consistent application of the “reasonable consumer” standard in food and beverage litigation. Describing frequent litigation targets such as foods labeled as “natural” and packages containing “excessive slack fill,” Silverman explains that in some cases, “a plaintiff’s alleged understanding of a product’s marketing is simply contrary to nature or reality.” For example, he notes, a complaint alleging that Kind’s Vanilla Blueberry Clusters were mislabeled as containing “no refined sugars” was dismissed because no reasonable consumer would interpret the label as meaning raw sugar cane, which is “a grass that contains joined stalks resembling bamboo … surrounded by bark.”

However, Silverman explains, some courts apply the reasonable consumer standard differently, allowing putative class action complaints to pass through the motion-to-dismiss stage, prompting settlement discussions between the parties. “In slack fill litigation, some courts have found packages that include not only the number of ounces of candy inside but even the precise number of candies may still mislead a reasonable consumer, allowing litigation to resolve the number of Sour Patch Kids that can fit in a box,” he writes.

Silverman suggests “three options for preserving the public’s respect for the civil justice system” as more food and beverage lawsuits are filed:

• Courts can “dismiss lawsuits with claims that strain believability as a matter of law before the expense or risks of the litigation pressure a company to settle it.”
• Legislatures can “tighten the requirements for private rights of action under state consumer protection statutes,” such as Arkansas’ 2017 change allowing only its attorney general to enforce the state’s Deceptive Trade Practices Act.
• Attorneys can self-regulate. “Lawyers specializing in bringing food and beverage marketing class actions can and should show greater ‘prosecutorial discretion,’ reserving litigation for false or truly deceptive practices,” Silverman argues.

“Reasonable consumers may not always have grounds for a lawsuit, but they are not without a remedy. They have the power to act with their wallets,” Silverman concludes. “Rather than bring a $20 million lawsuit after finding an eightpiece bucket of KFC’s fried chicken does not overflow with chicken as on TV, a customer can ask for her money back or go elsewhere next time.”