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Researchers have reportedly found that consumers are unsure what "natural," “organic” and “Non-GMO Project Verified” mean when the phrases appear on food labels. Konstantinos G. Syrengelas et al., "Is the Natural Label Misleading? Examining Consumer Preferences for Natural Beef," Applied Economic Perspectives and Policy, October 2017; Brandon R. McFadden, et al., “Effects of the National Bioengineered Food Disclosure Standard: Willingness to Pay for Labels that Communicate the Presence or Absence of Genetic Modification,” Applied Economic Perspectives and Policy, October 2017. To investigate a petition to the U.S. Department of Agriculture asserting that "natural" labeling misleads consumers, researchers conducted an online choice experiment to determine whether including a definition of "natural" on a label deterred or encouraged study participants to pay a premium for steak. The researchers apparently found that the participants were unwilling to pay a premium if they either identified themselves as familiar with the definition of "natural" or if they…

The U.S. Supreme Court has denied a petition for a writ of certiorari asking the court to resolve a split among circuit courts on the question of whether putative class action plaintiffs must propose an administratively feasible method to identify potential class members. Conagra Brands, Inc. v. Briseno, No. 16-1221 (U.S., denial entered October 10, 2017). The case centers on a consumer's allegation that Conagra Brands, Inc.'s Wesson cooking oil is mislabeled as "100% Natural" because it contains genetically modified ingredients. Conagra appealed a Ninth Circuit decision that joined the Sixth and Seventh Circuits in holding that independent administrative feasibility is not needed for a class action to succeed. The Second, Third, Fourth and Eleventh Circuits have allowed the additional requirement, which companies have used to argue that their putative class actions should be dismissed.

A consumer has filed a projected class action alleging Boar's Head Provisions Co. Inc. misleadingly markets its cheeses as "natural" despite containing genetically modified organisms (GMOs). Forsher v. Boar's Head Provisions Co. Inc., No. 17-4974 (N.D. Cal., filed August 25, 2017). The complaint asserts that GMOs are "not natural" and that "consumers do not expect [GMOs] to be present in foods labeled 'natural'"; further, "reasonable consumers do not believe there are any differences between foods that are labeled 'natural' and those that are labeled 'organic.' Reasonable consumers believe that 'organic' foods do not contain GMOs, and that foods labeled 'natural' are likewise free of such substances." The plaintiff seeks an injunction, restitution, damages and attorney's fees for alleged violations of state consumer-protection statutes as well as unjust enrichment and intentional misrepresentation.

A federal court has dismissed with prejudice a putative class action alleging that Quaker Oats’ use of “100% Natural” on its products misleads consumers, holding that the plaintiffs’ claims are expressly preempted by the Food, Drug and Cosmetic Act (FDCA). Gibson v. Quaker Oats Co., No. 16-4853 (N.D. Ill., entered August 14, 2017). The plaintiffs alleged that Quaker’s use of “natural” was misleading under several state statutes because the products contained residues of the herbicide glyphosate. The court held that nutritional and food labeling is governed by the FDCA, preempting the plaintiffs' state law claims, which were “attempting to challenge how food stuffs are marketed." In addition, the court held that the FDCA expressly governs the presence of pesticide and herbicide residues in food, “establishing a clear and manifest purpose that preempts state regulation of food labeling.” The court also found the plaintiffs had no standing to pursue claims related…

A California couple has filed two putative class actions alleging that the makers of Lay’s® and Pringles® salt-and-vinegar flavored chips mislabel and deceptively advertise their products, leading customers to believe the chips are naturally flavored when they actually contain artificial chemical flavorings. Allred v. Kellogg, No.17-1354 (S.D. Cal., removed to federal court July 5, 2017); Allred v. Frito-Lay N. Am., No. 17-1345 (S.D. Cal., removed to federal court July 3, 2017). In both suits, the plaintiffs claim the manufacturers label and advertise the potato snacks “as if [they] were flavored only with natural ingredients” and as containing “no artificial flavors.” The plaintiffs allege that although both products contain “actual vinegar—but in an amount too small to flavor the product,” the chips’ vinegar flavors are artificial. The Lay’s® complaint alleges that the label states the product contains malic acid; although l-malic acid can be found naturally in fruits and vegetables, the plaintiffs…

Sanderson Farms, Inc.’s "all natural" chicken contains pesticides, antibiotics and other pharmaceuticals, according to a lawsuit filed by the Center for Food Safety, Friends of the Earth and Organic Consumers Association. Organic Consumers Ass’n v. Sanderson Farms, No. 17­-3592 (N.D. Cal., filed June 22, 2017). The plaintiffs allege that Sanderson’s chicken products are advertised as “100% natural,” but testing purportedly shows the products contain human and veterinary antibiotics, tranquilizers, growth hormones, steroids and pesticides. The complaint further alleges the presence of such drugs indicate that Sanderson’s raises its chickens in “unnatural, intensive­-confinement, warehouse conditions” rather than “sipping lemonade and playing volleyball” as represented in the company’s online advertising. For alleged violations of California consumer­ protection laws, the plaintiffs seek accounting of profits, injunctive relief, corrective advertising and attorney’s fees. “Consumers should be alarmed that any food they eat contains steroids, recreational or anti­-inflammatory drugs, or antibiotics prohibited for use in livestock—much…

A complaint against the maker of Tabatchnick soups that alleged the company’s products could not be called “natural” because they contain genetically modified organisms (GMOs) has been voluntarily dismissed. Ramsaran v. Tabatchnick Fine Foods, Inc., No. 17-­60794 (S.D. Fla., dismissed June 9, 2017). The plaintiff had argued that he relied on the company’s “all natural” representations when he bought the company’s prepackaged soups but later learned that they contain GMO soy, corn or canola. Additional details appear in Issue 632 of this Update.   Issue 638

A California federal court has decertified a class and granted partial summary judgment in an action alleging Kraft Foods Group falsely advertised its fat­-free cheddar cheese as “natural.” Morales v. Kraft Foods Grp., No. 14-­4387 (C.D. Cal, order entered June 9, 2017). Details on previous decisions in the case appear in Issues 570 and 625 of this Update. The court first granted summary judgment for Kraft as to restitution because the plaintiffs failed to provide sufficient evidence about their potential willingness to pay a premium based on the “natural cheese” label and therefore could not establish a basis for calculating restitution for the class. Turning to the issue of whether the consumers' belief that the cheese was "natural" was material to their purchasing decisions, the court determined that the plaintiffs' expert testimony created a triable issue of fact that could not be dismissed during the summary-­judgment phase. Denying that portion…

A consumer has filed a proposed class action alleging Sargento Foods misleadingly advertises its cheese products as “natural” despite containing genetically modified organisms (GMOs) or animal growth hormones. Stanton v. Sargento Foods, Inc., No. 17­-2881 (N.D. Cal., filed May 19, 2017). The plaintiff asserts that the cows providing milk for the production of Sargento cheeses are fed GMO corn and soybeans as well as a growth hormone. Alleging violations of state consumer­ protection acts and breach of warranty laws, the plaintiff seeks class certification, damages, an injunction and attorney’s fees.   Issue 636

Consumer­ advocacy group Beyond Pesticides has filed suit against the maker of Mott’s applesauce products, alleging the term “natural” on its labels misleads consumers because the products contain the pesticide acetamiprid. Beyond Pesticides v. Dr Pepper Snapple Grp., No. 2017 CA 003156 B (D.C. Super. Ct., filed May 5, 2017). The plaintiff asserts that the “natural” and “All Natural Ingredients” labeling on several varieties of Mott’s applesauce mislead consumers who would not expect the products to contain a “synthetic, unnatural chemical.” Claiming violations of the District of Columbia’s Consumer Protection Procedures Act, the plaintiff seeks injunctive and equitable relief—including the establishment of a “community fund” to raise consumer awareness of acetamiprid—and attorney’s fees.   Issue 634

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