“All Natural” Lawsuits Proliferate, But Recovery Could Be Elusive

According to legal commentators, including Shook, Hardy & Bacon Agribusiness & Food Safety Practice Co-Chair Madeleine McDonough, while the floodgates have opened on litigation against food and beverage makers accusing them of misleading consumers with “All Natural” labels, proving that each plaintiff relied on the representation to purchase a given product may ultimately doom this recent class action trend. In a Law360 article titled “‘All Natural’ Class Action Wave May Be Short-Lived,” even plaintiffs’ lawyers concede that consumers expecting “all natural” products to provide some undefined quality will have difficulty proving that everyone relied on the representation when purchasing the product.

Noting that the Food and Drug Administration has not placed a priority on
defining the term in conjunction with foods and beverages, which makes it
a fertile ground for litigation, McDonough also said that plaintiffs face the
hurdle of proving a concerted effort to defraud them. In her experience,
however, “product manufacturers are trying to be careful, and they are aware
of litigation threats.” She contends that while companies consider the litigation
to be a “tempest in a teapot,” they have been conservative about product claims to avoid the considerable costs of defending putative class actions. See
Law360, October 19, 2011.