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A Florida plaintiff has filed a putative class action against the maker of Tabatchnick soups, alleging its products cannot be called “natural” because they contain genetically modified organisms (GMOs). Ramsaran v. Tabatchnick Fine Foods, Inc., No. 17­60794 (S.D. Fla., filed April 24, 2017). The complaint asserts that 19 Tabatchnick soups labeled or advertised as “all natural,” containing “highest quality, natural ingredients,” actually contain GMO soy, corn, canola or their derivatives. The plaintiff alleges that GMOs, which have “undergone sophisticated bioengineering,” cannot be described as “minimally processed” or natural and are therefore artificial. For alleged violations of the Florida Deceptive and Unfair Trade Practices Act, negligent misrepresentation and breach of express and implied warranties, the plaintiff seeks declaratory judgment, class certification, injunctive relief, damages and attorney’s fees.   Issue 632

California's Office of Environmental Health Hazard Assessment (OEHHA) has announced that glyphosate will be listed under the state's Safe Drinking Water and Toxic Enforcement Act (Prop. 65). In September 2015, OEHHA announced its findings on the carcinogenicity of glyphosate, a chemical used in pesticides that has been targeted in several putative class actions challenging whether a product can be "natural" if its ingredients retain some glyphosate residue from the growing process. The effective date of listing and the proposed safe harbor level will be determined after a California appeals court rules on a stay.   Issue 630

A consumer has filed a putative class action against the manufacturers of Rachael Ray’s dog foods, alleging that the products are labeled as “natural” despite containing artificial or synthetic chemicals. Grimm v. APN, Inc., No. 17­-0356 (C.D. Cal., filed February 28, 2017). The plaintiff claims that she only bought the dog foods, sold under the Nutrish , Dish, Zero Grain and Just 6 labels, because they were labeled as natural and free of preservatives and would have purchased other products had she known the foods contained “artificial preservatives and unnatural ingredients.” The plaintiff alleges the defendant manufacturers “capitalized” on consumer preferences for natural food products. The product labels indicate that the dog foods contain L-­ascorbyl­-2­ polyphosphate, menadione sodium bisulphate complex, thiamine mononitrate, and caramel color. For alleged negligent representation, violations of California’s Legal Remedies Act, False Advertising Law and Unfair Competition Law, breach of warranties and quasi­-contract, the plaintiff is…

The U.K. Advertising Standards Authority (ASA) upheld a complaint about the “About Us” section of its website for Appy Food & Drinks, which contained a claim that all of the advertiser’s juice drinks were “100% natural” despite containing calcium lactate and glucose-­fructose syrup. Appy Foods asserted that calcium lactate is a salt obtained through a natural fermentation process and occurs naturally in dairy products, and glucose-fructose syrup is obtained through hydrolysis of cornstarch, also a natural process. The watchdog agency reviewed Appy’s production processes and found that Appy did not provide sufficient evidence to demonstrate that the calcium lactate production process was “natural,” and further that the glucose­-fructose syrup was produced by the addition of an enzyme isomerase to the cornstarch, a “non-­traditional” treatment falling outside the definition of “natural” in the Food Standards Agency guidelines. Because the Appy juice drinks were not “single foods,” the ASA decided that the…

The plaintiff in a purported class action asserting that Herr Foods Inc. mislabels its packaged snacks as “natural” has filed a motion to disqualify defense counsel, alleging the attorney repeatedly made “extortionate threats” and committed professional misconduct. Whitaker v. Herr Foods, Inc., No. 16-2017 (E.D. Penn., motion filed December 14, 2016). The plaintiff’s motion follows Herr Foods’ motion for summary judgment, which asserted that the plaintiff could not possibly have purchased the products he claimed and that he is “a wholly inadequate lead plaintiff” because of “his faulty memory,” “his lengthy history of felony convictions involving theft and dishonesty and his potential mental health problems.” The plaintiff’s motion for disqualification alleges the defense attorney told the plaintiff that Herr Foods directed him to file for sanctions and refer the plaintiff to the district attorney’s office for an attempted criminal extortion investigation. “If you would like to talk about an agreement…

A consumer has filed a projected class action alleging Newman’s Own, Inc. misleadingly markets its pasta sauce products as natural despite containing citric acid. Wong v. Newman’s Own, Inc., No. 16-6690 (E.D.N.Y., filed November 30, 2016). The complaint asserts the company “deceptively used the term ‘natural’ to describe a product containing ingredients that have been either extensively chemically processed or fundamentally altered from their natural state and thus cannot be considered ‘minimally processed.’” The plaintiff admits “there is not an exacting definition of ‘natural’ in reference to food,” but cites the Merriam-Webster Dictionary, a decision from the National Advertising Division of the Better Business Bureau and the U.S. Department of Agriculture’s 2005 Food Standards and Labeling Policy Book to support his definition. For alleged violations of New York’s consumer-protection statutes, the plaintiff seeks class certification, restitution, damages, an injunction and attorney’s fees.   Issue 625

A California federal court has denied Kraft Food Group Inc.’s request to stay class action litigation alleging the company’s fat-free cheese product is misleadingly labeled “natural” because it contains artificial coloring, finding that the U.S. Food and Drug Administration’s (FDA’s) expected guidance on the term “natural” does not affect the issues of the case. Morales v. Kraft Foods Grp. Inc., No. 14-4387 (C.D. Cal., order entered December 6, 2016). A week earlier, the same court denied Kraft’s motion for summary judgment on the grounds that triable issues existed in the case, including (i) “whether consumers are likely to believe that ‘artificial color’ is not an artificial ingredient if it is produced by a natural product”; (ii) “whether such belief is material to customers’ purchasing decisions”; and (iii) “whether all artificial colors, regardless of source, are artificial ingredients.” Details about the certification of the class appear in Issue 570 of this…

The Organic Consumers Association (OCA) and Beyond Pesticides have filed a complaint against the Sioux Honey Association alleging the company’s Sue Bee® honey products contain the herbicide glyphosate despite being marketed as “Pure” and “Natural.” Organic Consumers Assoc. v. Sioux Honey Assoc. Coop., No. 008012 (D.C. Super. Ct., filed November 1, 2016). The complaint acknowledges that the glyphosate “may be due to the application of glyphosate on crops by neighboring farms and unrelated to beekeeping activities” but argues that the labeling is inaccurate regardless. The plaintiff organizations seek an injunction enjoining the labeling and mandating a corrective advertising campaign as well as costs. “A consumer seeing the words ‘Pure,’ ‘100% Pure’ or ‘Natural’ on a honey product would reasonably expect that product to contain nothing other than honey,” OCA International Director Ronnie Cummins said in a November 1, 2016, press release. “Regardless of how these products came to be contaminated,…

A consumer has filed a proposed class action against Hormel Foods Corp. alleging the company misrepresents its meat products as natural and free of preservatives despite containing synthetic or genetically modified ingredients, including cultured celery powder, baking powder and maltodextrin. Phelps v. Hormel Foods Corp., No. 16-62411 (S.D. Fla., Ft. Lauderdale Div., filed October 11, 2016). The lawsuit, focused on Hormel’s Natural Choice® line of products, echoes similar claims in a complaint filed by the Animal Legal Defense Fund in June 2016. Details on that complaint appear in Issue 610 of this Update. “The U.S. Department of Agriculture (‘USDA’) takes into account the level of processing in its policy on natural claims on food labeling,” the consumer complaint asserts. “The USDA allows such products to be labeled ‘natural’ when ‘(1) The product does not contain any artificial flavor or flavoring, coloring ingredient, or chemical preservative [], or any other artificial…

The Ninth Circuit Court of Appeals has reversed a grant of summary judgment to Dole Packaged Foods in a lawsuit alleging the company misleads consumers by labeling its packaged fruit products as “all natural” in violation of California consumer-protection statutes. Brazil v. Dole Packaged Foods, No. 12-1831 (9th Cir., order entered September 30, 2016). The appeals court reviewed the evidence before it—including the plaintiff’s testimony that the “all natural” label deceived him, the label itself, Dole’s consumer surveys and U.S. Food and Drug Administration warning letters—and found that “this evidence could allow a trier of fact to conclude that Dole’s description of its products as ‘All Natural Fruit’ is misleading to a reasonable consumer.” Accordingly, the court reversed the grant of summary judgment and remanded the case to the district court. The Ninth Circuit affirmed the district court’s dismissal of claims alleging Dole sold “illegal products.” The plaintiff “seems to be…

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