Insights & Events

The new year is sure to bring a continued surge of class actions alleging violations of state consumer protection statutes. Plaintiffs pursue these suits against product manufacturers to evade traditional product liability law that requires physical injury or to fault companies for voluntary recalls that often would be excluded from evidence as subsequent remedial measures. Instead, plaintiffs file on behalf of all uninjured purchasers of a product alleging benefit-of-the-bargain damages and seeking statutory damages and attorneys’ fees under consumer fraud and false advertising laws.

Recalls and high-profile media reports drive this litigation, and 2025 saw an increase in the former. The Consumer Product Safety Commission reported 357 recalls in 2025 compared to 333 in 2024. And the FDA reported 295 recalls in 2025 compared to 261 in 2024. The bulk of FDA recalls are in the food and beverage category and often draw significant news coverage.

In November, an infant formula manufacturer announced a major recall of its products. Within ten days of an expanded recall announcement, plaintiffs filed at least seven economic loss class actions against the manufacturer. Plaintiffs claim, among other things, that the company violated state consumer protection and false advertising statutes by marketing products as “safe.” This is a common hook for plaintiffs to turn a recall into a consumer protection class action—claiming that it is deceptive to fail to disclose that a product may be unsafe because consumers expect products to be free from harmful substances.

Recalls related to Listeria monocytogenes in food products also continued to expand in 2025. Shortly after a USDA recall of certain turkey bacon products in August 2025, plaintiffs filed a class action based on the presence of Listeria that was discovered during the company’s typical laboratory testing.

Companies also should pay particular attention to the growing supplements industry that is sure to be a target of litigation this year. Last year, the manufacturer of a popular homeopathic cold remedy conducted a voluntary recall under the auspices of the FDA because several of its swab products may have contained dangerous fungi. Plaintiffs hit the company with a class action just five days later. Among the claims, plaintiffs alleged that the scope of the recall was insufficient.

Media reports, on their own, also expose companies to litigation. In October, Consumer Reports published testing results of twenty-three popular protein powders and shakes that indicated some had elevated levels of lead. Within weeks of publication, the two companies that Consumer Reports claimed had the highest lead levels faced numerous class actions in New York, California, and Illinois.

Companies must develop a coherent, consistent, and comprehensive strategy at each stage of a recall, the public announcement, and subsequent litigation. Each step does not exist in a vacuum. Manufacturers need to implement a uniform response across the spectrum of regulation and litigation. Companies also must take media reports seriously, even if they are not grounded in science or based on verifiable facts. As in 2025, the food, beverage, and supplement industries are likely targets for increased consumer class action litigation in the new year.

— By Brett F. Clements