A Florida federal court has rejected a motion to dismiss in a case accusing Bodacious Foods of labeling its cookies as “all natural” despite containing sugar, canola oil, dextrose, corn starch, and citric acid, which the plaintiff alleges should preclude Bodacious from using the “natural” label. Dye v. Bodacious Food Co., No. 14-80627 (S.D. Fla., order entered September 9, 2014). Bodacious argued that the U.S. Food and Drug Administration (FDA) should have primary jurisdiction over the case, but the court disagreed, finding that FDA has declined to regulate the use of “natural” in food labeling. The cookie company also argued that its inclusion of all ingredients on the label was clear and not misleading, but the court found it “plausible that a consumer might rely on the ‘all natural’ representation without scrutinizing the ingredients or, alternatively, that a consumer might incorrectly believe that sugar, canola oil, dextrose, corn starch, and citric acid are ‘all natural’ ingredients.”

In a case with similar issues, another Florida federal court has preserved most of a lawsuit accusing Kashi of deceiving customers by using genetically modified organisms (GMOs) in food products it labeled as “all natural,” finding that the plaintiffs’ claims were well-pleaded. Gabbamonte v. The Kellogg Co., No. 12-21678 (S.D. Fla., order entered September 5, 2014). The plaintiffs objected to the use of several ingredients—pyridoxine hydrochloride, alpha-tocopherol acetate, hexane-processed soy ingredients, and calcium pantothenate, as well as GMO soy, corn, soy-derivatives, and corn-derivatives—in Kashi’s cereal products, snack bars, cookies, crackers, crisps, entrees, pilaf, pizza, and waffles. As in Bodacious, the court denied the idea that FDA has primary jurisdiction over “all natural” disputes. It also found the plaintiffs’ complaint to be well-pleaded. “To conceive how the [second amended complaint] could possibly be pled with any more particularity strains the imagination,” the court said, and the plaintiffs’ claims had sufficient plausibility to proceed, but only as to the products they actually purchased.


Issue 537

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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