Putative class actions have been filed in New Jersey and California federal courts against Tropicana Products, Inc., alleging that the company misleads consumers by labeling and marketing its orange juice as “100% pure and natural,” when it actually “undergoes extensive processing which includes the addition of aromas and flavors.” Lynch v. Tropicana Prods., Inc., No. 11-07382 (D.N.J., filed December 19, 2011); Lewis v. Tropicana Prods., Inc., No. 12-00049 (E.D. Cal., filed January 6, 2012). Both plaintiffs seek to certify nationwide classes. The New Jersey plaintiff alleges unjust enrichment, breach of express warranty, violation of the New Jersey Consumer Fraud Act, and injunctive and declaratory relief. He requests compensatory, treble and punitive damages; prejudgment interest; restitution; injunctive relief; attorney’s fees; and expenses and costs of suit. The California plaintiff, who also seeks to certify a subclass of California consumers, alleges unjust enrichment; breach of express warranty; violation of the state Consumers…
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George Washington University Law Professor John Banzhaf has issued a press release highlighting recent action the Food and Drug Administration took against a food company that purportedly misbrands one of its products by declaring it “All Natural” while making the product with a synthetic chemical preservative ingredient. According to Banzhaf, the agency’s warning letter is “likely to lend support to and encourage an ever-growing number of major class action law suits being filed on these grounds, says the public interest law professor whose earlier movement to use legal action as a weapon against obesity apparently inspired these new legal actions.” He claims that The American Lawyer recognized how he started this litigation movement, noting in an article that he used the courts to address obesity, “just as he had earlier done in leading the use of legal action as a weapon against smoking.” Banzhaf further states, “The movement which Banzhaf started…
A California resident who claims economic injury from purchasing Frito-Lay snack and chip products advertised as “All Natural” while allegedly containing genetically engineered (GE) corn and vegetable oil seeks to certify a nationwide class in a consumer fraud action filed in a California federal court. Gengo v. Frito-Lay N. Am., Inc., No. 11-10322 (C.D. Cal., filed December 14, 2011). According to the complaint, the company’s tortilla chips, sun chips and multigrain snacks are prominently labeled as “made with ALL NATURAL ingredients.” Because they are instead purportedly made with corn, soybean and canola oils “made from genetically modified plants and organisms,” the plaintiff contends that “she did not get the ‘all natural’ Tostito's and SunChip’s products that were advertised and she paid for.” Alleging violations of the California Business & Professions Code (misleading advertising and unfair competition) and Consumers Legal Remedies Act, breach of express warranty, and violation of the Magnuson-Moss…
A federal court in California has dismissed without prejudice a proposed class action alleging that ConAgra Foods misrepresented its Wesson cooking oils as “100% Natural” when they contain genetically modified (GM) ingredients. Briseño v. ConAgra Foods, Inc., No. 11 05379 (C.D. Cal., order entered June 28, 2011). Seeking to certify a nationwide class of consumers, the plaintiff sought declaratory and injunctive relief, compensatory damages, restitution, disgorgement, attorney’s fees, and costs, as well as an order requiring ConAgra to disclose the presence of GM ingredients and/or remove the “100% Natural” marketing claims from its products. Additional details about the complaint appear in Issue 400 of this Update. Ruling that the complaint failed to satisfy procedural rule requirements, the court found that the plaintiff’s general allegations “about when he purchased the product, where he purchased it, and how he was made aware of ConAgra’s representations about [sic] do not afford ConAgra adequate opportunity…
Seeking to certify a nationwide class of consumers, a California resident has filed consumer fraud claims against a company that makes numerous breakfast-, dessert- and bread-mix products promoted as “All Natural,” while containing purported synthetic ingredients, such as ascorbic acid, disodium phosphate, potassium carbonate, and sodium acid pyrophosphate. Larsen v. King Arthur Flour Co., Inc., No. 11-5495 (N.D. Cal., filed November 14, 2011). The complaint focuses on 64 specific products carrying “All Natural” labels and identifies which alleged synthetic ingredient is contained in each. The plaintiff alleges that she “did not receive the ‘All Natural’ baking mixes she bargained for . . . and has lost money as a result in the form of paying a premium for King Arthur’s Mixes because they were purportedly all natural rather than paying the lesser amount for non-natural alternatives.” The complaint, which also seeks to certify a sub-class of California consumers, alleges common…
Contending that the genetically modified (GM) corn in General Mills’ Kix Crispy Corn Puffs® and Honey Kix Crispy Corn Puffs® cereals renders their “All Natural Corn” representations false and misleading, a California resident has filed a putative class action against the company in state court. Lewis v. General Mills, Inc., No. BC472451 (Cal. Super. Ct., Los Angeles Cty., filed October 28, 2011). Citing the Cornucopia Institute’s “Cereal Crimes” report, and testing purportedly showing that Kix contains GM corn, the plaintiff seeks to certify a nationwide class of consumers who allegedly relied on the “All Natural” representations, as well as other company indicia of wholesomeness, to purchase products at a premium price and were denied the benefit of their bargain. According to the plaintiff, companies that produce GM crops note that that their genetic makeup has been “altered to exhibit traits that are not naturally theirs,” and the World Health Organization…
California residents have filed a putative class action in a federal court against grocery chain Trader Joe’s Co., alleging that a number of its “All Natural” products contain synthetic or artificial ingredients and thus are mislabeled and falsely advertised. Larsen v. Trader Joe’s Co., No. 11-5188 (N.D. Cal., filed October 24, 2011). According to the complaint, “The labeling of products as ‘All Natural’ carries implicit health benefits important to consumers—benefits that consumers are often willing to pay a premium for over comparable products that are not ‘All Natural.’ Trader Joe’s has cultivated and reinforced a corporate image that has catered to this ‘All Natural’ theme and has boldly emblazed this claim on each and every one of its foods identified above, despite the fact Trader Joe’s uses synthetic ingredients in the products identified above.” The listed products include cookies, biscuits, cheese, fruit jellies, and apple juice sold under the Trader…
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,…
The Cornucopia Institute has published a report titled “Cereal Crimes: How ‘Natural’ Claims Deceive Consumers and Undermine the Organic Label—A Look Down the Cereal and Granola Aisle.” Noting that, with one exception, no government agency has defined what the term “natural” means on food packages, the organization explains how companies that make cereal products exploit consumer confusion over the difference between “organic” and “natural” products, charging a premium for “natural” products that actually contain ingredients containing pesticides or ingredients grown and processed with genetically engineered (GE) organisms. The report, accompanied by an “online scorecard with nearly 50 cereal and granola brands, available on the Cornucopia website,” (i) details current legal requirements that distinguish organic from “natural” claims; (ii) discusses individual company definitions of “natural” to demonstrate “how vastly different they can be”; (iii) summarizes the results of consumer polling showing that many “erroneously believe that the ‘natural’ label has merit,…
The U.S. Judicial Panel on Multidistrict Litigation (JPML) has consolidated six actions questioning the “100% Natural” claims for Wesson oil products before a multidistrict litigation (MDL) court in California. In re: Wesson Oil Mktg. & Sales Practices Litig., MDL No. 2291 (JPML, transfer order filed October 13, 2011). The defendant requested the transfer, and while the California, Florida and New Jersey plaintiffs supported consolidation, they disagreed on the transferee district. According to the court, centralization “in the Central District of California will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” The court found, “All actions contain similar allegations against ConAgra and share factual questions regarding the labeling and marketing of Wesson oils as ‘100% Natural’ when the oils purportedly contain genetically modified plants or organisms. Little litigation activity has occurred in the actions, which were all filed within the past…
