Class Actions Challenging Use Of 'Natural' On Food Labels Begin To Founder - Forbes
Glenn G. Lammi
For the past two years, plaintiffs’ lawyers have nourished Washington
Legal Foundation commentators here at Forbes.com with a steady diet of
all-natural lawsuits. And by that we mean class actions alleging that
the use of “natural” or “all natural” on a food product label is false
or misleading under state law (normally, California law). Other than the
occasional decision to put a lawsuit on hold so
the Food & Drug Administration (FDA) can provide a formal
definition for “natural” (which it has yet to do), these claims have
mostly survived defendants’ efforts to dismiss them.
However, with four courts issuing decisions favorable to defendants
in the past three months, these “all natural” claims may have become
less appetizing.
Claims Rejected at Motion to Dismiss Stage. In order
to prevail on claims that defendants’ use of “natural” violated
California law, plaintiffs must prove that “reasonable consumers” relied
on the claim and were deceived by it. Whether a business practice is
deceptive normally presents a question of fact for a jury. But under
California case law, judges in some instances can determine that as a
matter of law, consumers are unlikely to be deceived. One area where
judges have taken such action at the motion to dismiss stage is product
packaging claims.
We’ve previously discussed Northern District of California Judge Koh’s opinion in Kane v. Chobani,
the first of two recent rulings to dismiss a “natural” claim. Judge Koh
ruled that because yogurt labels clearly disclosed the use of fruit or
vegetable juice concentrate, the plaintiffs could not plausibly have
been misled by Chobani’s “all natural” representation.
On October 25, Judge Walter of the Central District of California dismissed with prejudice
claims that the “all natural” representation on 13 Buitoni brand
products were deceptive because they contained “unnatural” ingredients
like xantham gum and soy lecithin (Pelayo v. Nestlé USA). His analysis was quite a bit more extensive than Judge Koh’s in Chobani. He first examined whether Pelayo “offer[ed] an objective or plausible definition of the phrase ‘All Natural’.” The Webster’s Dictionary
definition—”produced or existing in nature”—clearly “does not apply,”
Judge Walter wrote. As stated cleverly in Nestlé’s brief (and repeated
by the judge), consumers knew that “Buitoni pastas are not springing
fully-formed from Ravioli trees and Tortellini bushes.”
Pelayo also pointed to FDA’s 1991 informal policy document on
“natural,” which Judge Walter properly stated “does not establish a
legal requirement.” The plaintiff finally resorted to semantic games,
arguing that none of the ingredients in a “natural” product can be
“artificial” or “synthetic” as defined by FDA in rules regarding,
respectively, flavor additives and organic products. Judge Walter
responded that neither set of rules applied because none of the suspect
ingredients in Buitoni products were added for flavor, nor did Buitoni
seek organic status for its products.
In the second part of his analysis, Judge Walter asked whether “the use of the term ‘All Natural’ is [ ] deceptive in context.”
The relevant context, he stated, was the package label. “All Natural”
appeared immediately above the ingredient list. Thus, “to the extent
there is any ambiguity . . . it is clarified by the detailed information
contained in the ingredient list.” The judge cited to Judge Koh’s
reasoning in Kane v. Chobani on that point.
Claims Rejected at Class Certification Stage. In two other cases where the presiding judge (Marilyn Huff of the Southern District of California) was previously unwilling to grant defendants’ motions to dismiss
“all natural” deceptive labeling claims, she refused to certify broad
classes to pursue such claims. Judge Huff issued class certification
opinions in both cases on the same day, July 30.
One involved a frequent litigant
in product labeling class actions, Skye Astiana, who sued Kashi Company
for representing that 91 different products were “All Natural” (Astiana v. Kashi Company).
The threshold question Judge Huff had to consider for an “All Natural”
class: did common issues predominate over individual ones? Astiana
argued that Kashi’s “All Natural” statements had materially
misled each member of the class, and that such materiality creates an
inference that each plaintiff similarly relied upon that statement when
purchasing Kashi products. Judge Huff did not agree.
Glenn G. Lammi
Legal Foundation commentators here at Forbes.com with a steady diet of
all-natural lawsuits. And by that we mean class actions alleging that
the use of “natural” or “all natural” on a food product label is false
or misleading under state law (normally, California law). Other than the
occasional decision to put a lawsuit on hold so
the Food & Drug Administration (FDA) can provide a formal
definition for “natural” (which it has yet to do), these claims have
mostly survived defendants’ efforts to dismiss them.
However, with four courts issuing decisions favorable to defendants
in the past three months, these “all natural” claims may have become
less appetizing.
Claims Rejected at Motion to Dismiss Stage. In order
to prevail on claims that defendants’ use of “natural” violated
California law, plaintiffs must prove that “reasonable consumers” relied
on the claim and were deceived by it. Whether a business practice is
deceptive normally presents a question of fact for a jury. But under
California case law, judges in some instances can determine that as a
matter of law, consumers are unlikely to be deceived. One area where
judges have taken such action at the motion to dismiss stage is product
packaging claims.
We’ve previously discussed Northern District of California Judge Koh’s opinion in Kane v. Chobani,
the first of two recent rulings to dismiss a “natural” claim. Judge Koh
ruled that because yogurt labels clearly disclosed the use of fruit or
vegetable juice concentrate, the plaintiffs could not plausibly have
been misled by Chobani’s “all natural” representation.
On October 25, Judge Walter of the Central District of California dismissed with prejudice
claims that the “all natural” representation on 13 Buitoni brand
products were deceptive because they contained “unnatural” ingredients
like xantham gum and soy lecithin (Pelayo v. Nestlé USA). His analysis was quite a bit more extensive than Judge Koh’s in Chobani. He first examined whether Pelayo “offer[ed] an objective or plausible definition of the phrase ‘All Natural’.” The Webster’s Dictionary
definition—”produced or existing in nature”—clearly “does not apply,”
Judge Walter wrote. As stated cleverly in Nestlé’s brief (and repeated
by the judge), consumers knew that “Buitoni pastas are not springing
fully-formed from Ravioli trees and Tortellini bushes.”
Pelayo also pointed to FDA’s 1991 informal policy document on
“natural,” which Judge Walter properly stated “does not establish a
legal requirement.” The plaintiff finally resorted to semantic games,
arguing that none of the ingredients in a “natural” product can be
“artificial” or “synthetic” as defined by FDA in rules regarding,
respectively, flavor additives and organic products. Judge Walter
responded that neither set of rules applied because none of the suspect
ingredients in Buitoni products were added for flavor, nor did Buitoni
seek organic status for its products.
In the second part of his analysis, Judge Walter asked whether “the use of the term ‘All Natural’ is [ ] deceptive in context.”
The relevant context, he stated, was the package label. “All Natural”
appeared immediately above the ingredient list. Thus, “to the extent
there is any ambiguity . . . it is clarified by the detailed information
contained in the ingredient list.” The judge cited to Judge Koh’s
reasoning in Kane v. Chobani on that point.
Claims Rejected at Class Certification Stage. In two other cases where the presiding judge (Marilyn Huff of the Southern District of California) was previously unwilling to grant defendants’ motions to dismiss
“all natural” deceptive labeling claims, she refused to certify broad
classes to pursue such claims. Judge Huff issued class certification
opinions in both cases on the same day, July 30.
One involved a frequent litigant
in product labeling class actions, Skye Astiana, who sued Kashi Company
for representing that 91 different products were “All Natural” (Astiana v. Kashi Company).
The threshold question Judge Huff had to consider for an “All Natural”
class: did common issues predominate over individual ones? Astiana
argued that Kashi’s “All Natural” statements had materially
misled each member of the class, and that such materiality creates an
inference that each plaintiff similarly relied upon that statement when
purchasing Kashi products. Judge Huff did not agree.
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