San Francisco has always been a great restaurant town, and if anything, the food and dining options have only gotten better over the last 20 years.  Come to think of it, the food and dining scene has improved most everywhere, to the point that you can find a great meal in all parts across the country.  We’ve had the best shrimp and catfish we’ve ever eaten while taking depositions in the South, and, while recently vacationing in a New England town where we spent part of our youth, we could not help but notice the number of really good eateries that were not there before.  (Although one beloved greasy spoon had converted to a Starbucks, so not every change was an improvement.)  Our collective obsession with food is seen further in the proliferation of food-related television programming, including a Food Network, which we will unabashedly admit to watching and enjoying somewhat regularly.

We are waxing on about San Francisco and food for two reasons.  First, this is your blogger’s inaugural blog post, and my law practice is based in the City by the Bay.  I have long admired the Drug and Device Law Blog and especially its contributors, who for many years have carried a banner for those of us on the “right side of the v” with intelligence, wit, and above all relentlessness.  Day in and day out.  Although I am cut from much the same cloth as my co-bloggers, my voice originates from a point west of Princeton, Philadelphia and Washington, D.C., and I am thrilled to be joining the effort.

Second, the Northern District of California has become somewhat a center for food-related litigation. Some refer to it as the “Food Court,” although we believe that label is largely promoted by those interested in seeing food-related litigation gain legitimacy and expand.  We have written many times about food litigation, including here and here, because even though we are the Drug and Device Law Blog, the “F” in FDCA stands for Food, and we take lessons from food on such topics as preemption, primary jurisdiction, and claims for consumer remedies.

This leads to a recent order from the Northern District of California where the court dismissed food-related claims in ways that we like, but did not embrace one of our favorite grounds for dismissal – federal preemption.  In Kane v. Chobani, Inc., No. 12-cv-02425, 2013 U.S. Dist. LEXIS 98752 (N.D. Cal. July 12, 2013), the plaintiffs alleged that the defendant had mislabeled its “Greek” yogurt products in three ways – by referring to the yogurt’s sweetener as “evaporated cane juice” when it essentially is just sugar; by falsely claiming “no sugar added” on its website; and by falsely stating that the products were “all natural.”  Id. at *3-*6.  Lawsuits of these kinds, and particularly those focused on whether products are “all natural,” unfortunately have become  familiar, which begs the question in our minds of how much consumers (1) read alleged representations like these and (2) attribute meaning to them in making their purchasing decisions.  Maybe they do, maybe they don’t.  We can’t tell without asking them.Continue Reading Is Kane Sugar Parallel to Cane Sugar?