Alexander M. Smith

LOS ANGELES - As a member of Jenner & Block's relatively new food and beverage practice group, Smith primarily defends manufacturers and producers in class actions brought by consumers attacking the ingredients, labels or marketing of his clients' products.

He's been very busy lately.

Several years ago, Smith said, food and beverage companies were frequently sued for claiming their products were natural or healthy. Since then, the producers have become more careful. And plaintiffs' lawyers have become more creative, he said.

Food class actions tend to come in three varieties, according to Smith. One relies on technical readings of Food and Drug Administration regulations.

As an example, he defeated a class action alleging that the protein quantity stated on the front of some Kashi products was misleading, even though it matched the protein listed in the nutrition facts panel on the back. The plaintiffs alleged the label didn't make clear the quality and digestibility of the protein, as a complex FDA regulation specifies.

But in a motion to dismiss in February, Smith successfully argued that such a reading of the regulation was incorrect. "It would be irrational and confusing to consumers to say on the back of the package this product contains 10 grams of protein, but on the front say this package contains seven grams of protein," he said. Nacarino v. Kashi Co., 3:21-cv-07036 (N.D. Cal., filed Sept. 10, 2021).

Since his victory in February, four other judges have reached much the same conclusion in other protein cases, he said.

Another variety of litigation claims food or beverage labels failed to disclose unwanted ingredients, like PFAF chemicals or heavy metals. Smith is part of the team representing Hain Celestial against a number of lawsuits alleging its baby food contains undisclosed heavy metals.

Smith said he worked to have the cases consolidated in New York federal court, but without turning them into multidistrict litigation.

That was "a very hard needle to thread," he said, but he and Hain had a good reason. "When you create an MDL in these product liability cases, it serves as a beacon and plaintiffs' lawyers just start filing," he said. In re Hain Celestial Heavy Metals Baby Food Litigation, 2:21-cv-00678 (S.D. N.Y. filed Feb. 8, 2021).

In Smith's third category of consumer class actions, plaintiffs allege the primary ingredient listed in the name of a food item isn't actually predominant in that item. For instance, he won motions to dismiss two lawsuits that challenged the strawberry content of strawberry Pop-Tarts because the pastries' first-listed fruit ingredients are apples and pears. Strawberries, the lawsuits contended, contain important nutrients and antioxidants that consumers want.

But Smith countered that everybody knows that Pop-Tarts are junk food. "Nobody buys a strawberry Pop-Tart because they want to get their polyphenols," he said.

He also defeated a class action complaining that fudge Pop-Tarts don't contain butter and milk like real fudge does, and he won a quick dismissal of a lawsuit attacking MorningStar veggie burgers and other veggie products for not containing vegetables. He said the judge who dismissed the veggie case said the complaint was "really out there."