Snapple Beverage Corp. has requested that a federal district court dismiss the individual claims remaining in litigation alleging that the company misled consumers by labeling beverages containing high-fructose corn syrup (HFCS) as “all natural.” Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., motion filed September 17, 2010). In August 2010, the court issued an order denying plaintiffs’ request to certify a statewide class of claimants. Additional information about that order appears in Issue 363 of this Update. According to the defendant’s memorandum of law supporting its motion, while the plaintiffs “seek recovery of an alleged ‘price premium’” that they paid for the products, they (i) do not know how much they actually paid for Snapple, (ii) made no effort to determine how comparable products were priced when they purchased Snapple beverages, (iii) lack any receipt to document a Snapple purchase, (iv) “cannot recall with any certainty the price they paid…
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The American Bar Association Tort Trial & Insurance Practice Section’s Animal Law Committee will convene a teleconference on September 28, 2010, to discuss farmed animal welfare and related labeling issues. Temple Grandin, a Colorado State University professor well-known for her work in animal science, will be among the panel of experts to discuss (i) “commercial speech and the role of liability for false advertising under federal and state law in the labeling of food products”; (ii) “the movement to promote more detailed labeling regarding animal welfare and to create verifiable compliance”; (iii) “what, if any, legal meanings are ascribed to terms such as ‘humane,’ ‘cage-free,’ ‘free-range,’ ‘natural’ and ‘organic’ and how are they used in practice vis a vis animal welfare”; and (iv) “the rapidly shifting world of scientific awareness and consumer perceptions regarding what constitutes satisfactory animal welfare, and its impact on producers’ ability to provide accurate labeling.”
A federal court in New York recently refused to certify a statewide class of consumers who allege that Snapple Beverage Corp. misled them by marketing its products as “all natural” when they actually contain high-fructose corn syrup (HFCS). Weiner v. Snapple Beverage Corp., No. 07-8742 (S.D.N.Y., order entered August 5, 2010). The court apparently determined that individual issues, such as causation, injury and damages, would predominate over common ones. According to the court, “Individualized inquiries would be required to determine, for instance whether class members were fully informed about the inclusion of HFCS in Snapple beverages, whether they believed HFCS to be natural, and whether they continued to purchase Snapple despite their beliefs concerning HFCS. Such individual issues would also dwarf any issues of law or fact common to the class.” The court also reportedly determined that the named plaintiffs did not proffer a suitable methodology for establishing causation and…
The National Advertising Review Board (NARB) has reportedly recommended that Heartland Sweeteners cease advertising its Ideal® sweetener as “more than 99 percent natural,” after finding that the claim could be misleading to consumers. The board, an appellate arm of the advertising industry’s self-regulatory system, apparently agreed with the National Advertising Division of the Council for Better Business Bureaus that the message conveyed by Heartland’s advertising is that most of the product’s sweetness comes from natural ingredients, when, in fact, the ingredient responsible for 80 percent of its sweetness is the artificial sweetener sucralose. The company issued a statement indicating that it “respectfully disagrees with the NARB’s decision and maintains that its ‘more than 99 percent natural’ claim is clear, truthful and not misleading.” Less than 1 percent of the sweetener consists of sucralose. Still, the company has reportedly indicated that it is reviewing its advertising and packaging and will take…
The Center for Science in the Public Interest (CSPI) has issued an August 12, 2010, statement and letter lambasting Ben & Jerry’s “All Natural” ice cream and frozen yogurt for allegedly containing “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” The watchdog has threatened to take its concerns to the Food and Drug Administration (FDA) and state attorneys general if Unilever fails to drop the products’ marketing claim. The group singles out cocoa processed with alkali as “the most frequently used unnatural ingredient,” followed by corn syrup, dextrose, invert sugar, brown rice syrup, partially hydrogenated soybean oil, and maltodextrin. Moreover, CSPI maintains that alkalizing cocoa changes its chemical structure and reduces acidity and flavonol content. “Indeed,” states the CSPI press release, “Unilever recently sponsored research to investigate an association between flavonol intake and incidence of…
A U.S. magistrate judge in New Jersey has issued an order staying a case that alleges “natural” labeling for Snapple beverages is misleading because the product contains high-fructose corn syrup (HFCS), which plaintiffs contend is not an all-natural ingredient. Holk v. Snapple Beverage Corp., No. 07-3018 (D.N.J., order entered August 10, 2010). The parties drew the court’s attention to a stay issued in similar litigation involving Arizona Iced Tea® beverages. Additional information about that case appears in Issue 356 of this Update. The stay will remain in effect for six months, pending a Food and Drug Administration (FDA) review of the matter. “That time period may be extended for good cause shown, in the event the FDA shows a willingness to consider this issue but needs more time to do so. If, on the other hand, the FDA declines to consider the issue, counsel are directed to notify the Court promptly…
A federal court in New Jersey has reportedly stayed for six months consumer fraud litigation against the company that makes Arizona Iced Tea® beverages and has asked the Food and Drug Administration (FDA) to determine whether high-fructose corn syrup (HFCS) qualifies as a “natural” ingredient. Coyle v. Hornell Brewing Co., No. 08-2797 (D.N.J., stay order entered June 15, 2010). Claiming that these beverages are deceptively marketed as “100% Natural” despite containing HFCS, the plaintiff alleges violation of the New Jersey Consumer Fraud Act, unjust enrichment and common-law restitution, and breach of express and implied warranties. The court issued the stay rather than dismiss the putative class action outright as requested by the defendants on the basis of the doctrine of primary jurisdiction. According to a news source, the court acknowledged that “categorizing HFCS as either natural or artificial for the purpose of food and beverage labeling does not fall within…
The Council of Better Business Bureaus’ National Advertising Division (NAD), which serves as the investigative arm of the advertising industry’s voluntary self-regulation program, has recommended that Heartland Sweeteners cease making some claims about its Ideal® sweetener product. The recommendation apparently followed a complaint by Merisant Co., a Heartland competitor, that Ideal® is not “natural” or “more than 99 percent natural” as the company claims because the majority of its sweetness comes from the artificial sweetener sucralose. While Heartland agreed that its sweetener contains sucralose, the company contends that the natural sweetener Xylitol is the product’s main ingredient. According to NAD, Ideal® as a whole may be “more than 99% natural,” but “the context in which it is presented may still cause it to convey a message that is false or misleading to consumers.” NAD found that the product’s sweetness is “not due primarily to Xylitol, but, rather, the synthetic sucralose it…
A federal court in California has dismissed without prejudice putative class claims that Nature Valley granola bars were fraudulently promoted as “100% Natural” while containing purportedly non-natural ingredients such as high-fructose corn syrup (HFCS). Wright v. General Mills, Inc., No. 08-1532 (S.D. Cal., decided September 30, 2009). The court refused to dismiss the claims as preempted under federal law or under the primary jurisdiction doctrine, which allows courts to stay or dismiss litigation “pending the resolution of an issue within the special competence of an administrative agency.” The dismissal was based instead on the plaintiff’s failure to plead her claims with sufficient specificity under recent U.S. Supreme Court rulings that have, according to the court, dramatically changed the federal courts’ notice-pleading standard. The court determined that the first amended complaint (FAC) “is based on little more than conclusory and speculative factual content . . . Plaintiff argues that her FAC alleges…
According to a recent Orlando Sentinel article, consumers do not understand the difference between food products labeled as “natural,” which, for the most part, is an unregulated term, and those labeled “organic,” which carries extensive government regulation and requires certification. Some food producers are apparently taking advantage of consumers’ mistaken belief that “natural” is a greener term than “organic”; the natural food market reportedly grew 10 percent between 2007 and 2008 to $12.9 billion. Foods labeled “natural” are generally sold for less than those labeled “organic,” and producers can and do create their own definitions for what is “natural.” The article outlines the different rules applying to organic and natural food products. See Orlando Sentinel, September 29, 2009. In a related development, the French agency responsible for regulating competition and fraud has reportedly issued a note establishing requirements for foods sold as “naturel.” The document was apparently prepared for inspectors…
