The Consumer Reports (CR) Food Safety and Sustainability Center has reportedly tested more than 80 processed foods for genetically engineered (GE) corn or soy, concluding that products labeled “natural” contained GE ingredients in levels comparable to those of their conventional counterparts. After analyzing breakfast cereals, bars, corn chips and tortillas, baking mixes and flour, meat and dairy substitutes, and tofu/tempeh, CR reported that (i) the majority of corn and soy identified in conventional products was genetically modified; (ii) products deemed “no GMO” by the manufacturer were less than 0.9 percent GE corn or soy; and (iii) products bearing third-party “Organic” or “Non GMO Product Verified” claims also contained negligible amounts of GE corn or soy. Based on these findings, CR has dubbed “Natural” labels “not meaningful,” as the U.S. Food and Drug Administration (FDA) does not enforce any formal definition for this label. In addition, CR Food Safety and Sustainability Center…
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A German appeals court has dismissed a lawsuit brought by consumer group Stiftung Warentest accusing candy manufacturer Ritter Sport of labeling its Whole Hazelnut bar as natural despite containing piperonal, which the group contends can only be obtained using unnatural chemicals. The ruling prevents Stiftung Warentest from claiming Ritter is misleading customers but does not yet allow claims for damages. A representative of Stiftung Warentest expressed disappointment with the decision, saying that they still did not know how Ritter produced the piperonal, but a Ritter representative said that the company, along with its piperonal supplier Symrise, had filed patents on how the substance could be obtained naturally. See Confectionery News, September 15, 2014. Issue 539
A California federal court has certified a statewide liability class in a lawsuit accusing Jamba Juice of labeling its home smoothie kits as “all natural” despite containing five synthetic ingredients—ascorbic acid, xanthan gum, steviol glycosides, modified corn starch, and gelatin—but it refused to certify the class for damages. Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered September 18, 2014). The court dismissed Jamba Juice’s argument that the class was unascertainable because no purchase records existed for the kits, finding that such an approach would “have significant negative ramifications for the ability to obtain redress for consumer injuries.” The court agreed, however, with Jamba Juice’s proposition that the plaintiffs could not provide a plausible class-wide damages model, because they did not show “any evidence, expert reports, or even detailed explanation about how those damages models can be fairly determined or at least estimated.” See Bloomberg BNA, September 19, 2014.…
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…
The Ninth Circuit Court of Appeals has denied a request for interlocutory review of a class certification ruling in an action alleging that Blue Diamond Growers’ almond milk is mislabeled as “All Natural” and the company hides its added sugar content by listing “evaporated cane juice” (ECJ) on its label instead. Blue Diamond Growers v. Werdebaugh, No. 14-80084 (9th Cir., order entered August 22, 2014). Additional details about the suit appear in Issue 525 of this Update. Blue Diamond challenged the district court’s ruling that the class was ascertainable, arguing that the decision “exacerbates a split of authority amongst district courts in this Circuit over the threshold showing that putative class representatives must make to demonstrate an ascertainable class in food mislabeling cases. The Third Circuit Court of Appeals—the only circuit to squarely resolve the issue—holds that sales records or other reliable evidence of product purchases must be available for a…
The parties to a putative class action against Merisant Co. and Whole Earth Sweetener Co. have agreed on settlement terms, including changes to the Pure Via sweetener’s website and packaging, class certification and a $1.65- million payment to a settlement fund. Aguiar v. Merisant Co., No. 14-670 (C.D. Cal., motion filed August 18, 2014). The plaintiff had alleged that Merisant and Whole Earth label, advertise and market Pure Via products as natural, which she argued was false and deceptive. Under the terms of the proposed settlement, Merisant and Whole Earth agreed to add an asterisk to Pure Via packaging with a statement that directs consumers to the product website, which will explain the process of producing Pure Via from stevia to provide consumers with “significant information to make their own determination as to whether they deem Pure Via to be ‘natural.’” In addition, Merisant and Whole Earth have agreed to…
The parties to litigation alleging that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such have agreed to settle the putative nationwide class action for $5.25 million and labeling changes. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., motion filed August 20, 2014). Additional information about the case appears in Issues 465 and 479 of this Update. The settlement would also resolve claims to be alleged in a second lawsuit by an intervening named plaintiff regarding the use of “all natural” on product labels. Under the agreement, class members who purchased the company’s Classic White Chips would be able to receive $1.50 per purchase, while those purchasing 72 other “all natural” products would receive $0.75 per purchase. The claims of those with proofs of purchase would not be capped, while claimants without proof of purchase would receive a maximum…
A California federal court has dismissed several of the plaintiffs’ claims in a putative class action accusing Frito-Lay North America Inc. of mislabeling its Rold Gold pretzels as “low fat,” “fat free” or “all-natural” despite allegedly containing high sodium levels and unnatural ingredients. Figy v. Frito-Lay North America Inc., No. 13-3988 (N.D. Cal., order entered August 12, 2014). The court found that the plaintiffs had standing to sue on behalf of purchasers of several non-purchased products because Frito-Lay’s health claims were the same for each and the only difference was the shape of the pretzel products. The court then dismissed several of the plaintiffs’ claims. It found that it did not have subject matter jurisdiction to grant injunctive relief because Frito-Lay had triggered the plaintiffs’ obligation to prove jurisdiction by submitting declarations and extrinsic evidence of the plaintiffs’ lack of standing to seek an injunction, and the plaintiffs had then failed to…
A plaintiff has accused cereal company Organic Milling of mislabeling its Nutritious Living Hi-Lo brand cereals as “100% natural” despite allegedly containing synthetic and heavily processed ingredients and being produced with genetically modified (GM) crops. Mirto v. Organic Milling, No. BC553780 (Super. Ct. Cal., Los Angeles Cty., filed Aug. 5, 2014). The complaint alleges first that the use of GM crops in the cereal’s production precludes the company from using the phrase “100% natural” on its marketing materials, citing definitions from the World Health Organization and Environmental Protection Agency to argue that “GM crops are not ‘natural,’ and products made from these crops, including [Organic Milling’s products], are not ‘100% natural.’” The complaint further argues that Organic Milling’s use of canola oil in Hi-Lo cereal is not “100% natural” either because of the heavy processing required to produce the oil. The plaintiff also objects to the use of emulsifier soy…
A federal court in California has granted in part the motion to dismiss filed by Diamond Foods, Inc. in a putative class action alleging that the company misleads consumers by claiming that its Reduced Fat Sea Salt Chips are “40% reduced fat potato chips” and its Backyard Barbecue Chips are “All Natural,” as well as making false and deceptive statements in the company’s “promotional materials” and on its “website.” Hall v. Diamond Foods, Inc., No. 14-2148 (U.S. Dist. Ct., N.D. Cal., order entered July 31, 2014). An amended complaint, if any, must be filed by August 15, 2014, and the case management conference will be held on October 31. The court dismissed the reduced fat claims finding them insufficiently pleaded because it was unclear whether the plaintiff read only the statement on the front of the bag, in which case he “would lack standing to argue the statements on the…
