A consumer has filed a putative class action in New York federal court against Blue Diamond Growers alleging that the company deceptively labels its Almond Breeze Almond Milk as “All Natural” despite containing potassium citrate, Vitamin A Palmitate, Vitamin D2, and D-Alpha-Tocopherol. Harlam v. Blue Diamond Growers, No. 15-877 (E.D.N.Y., filed February 19, 2015). The plaintiff alleges that 18 varieties of Blue Diamond almond milk contain the ingredients at issue, which she asserts are artificial or synthetic and, as a result, reasonable consumers would not expect to find them in products labeled as natural. “The [U.S. Food and Drug Administration] considers use of the term ‘natural’ on a food label to be truthful and non-misleading when ‘nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food,’” she argues. Alleging unjust enrichment, breach…
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A California federal court has allowed most of the claims to proceed in a lawsuit alleging that Marie Callender’s baking mixes are labeled “all natural” despite containing the synthetic ingredient sodium acid pyrophosphate. Musgrave v. ICC/Marie Callender’s Gourmet Prods. Div., No. 14-2006 (U.S. Dist. Ct., N.D. Cal., order entered February 5, 2015). The court dismissed the plaintiff’s request for an injunction and unjust enrichment claim but denied the food company’s motion to dismiss all other claims. The court assessed each argument in the motion to dismiss in turn, finding first that the plaintiff’s claims were not preempted by the Federal Food, Drug, and Cosmetic Act or subject to the primary jurisdiction of the U.S. Food and Drug Administration. It then discussed whether a reasonable consumer would be deceived by the term “natural” on the baking mixes. The court dismissed the food company’s argument that the plaintiff offered inconsistent meanings of “natural”…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
A California federal court has granted Blue Diamond’s motion to decertify a statewide class of consumers who alleged that the company’s almond milk product labels were misleading because they cited “evaporated cane juice” on the ingredient list rather than the alleged common name for the substance, sugar. Werdebaugh v. Blue Diamond Growers, No. 12-2724 (N.D. Cal., order entered December 15, 2014). The court had preliminarily certified the class in May 2014 on the condition that the plaintiff could provide a damages model that limited recovery to those injured by the alleged mislabeling. Upon reviewing the proposed model, the court found fundamental flaws with the method of determining damages “because Dr. Capps’ model is incapable of isolating the damages attributable to Defendant’s alleged wrongdoing. Instead, Dr. Capps’ methodology measures the ‘combined effect’ of Blue Diamond’s brand value and Blue Diamond’s use of ‘evaporated cane juice’ and/or ‘All Natural’ on the prices…
A putative class action alleging that Conopco Inc., a subsidiary of Unilever United States, mislabeled Breyers ice cream as “all natural” has been voluntarily dismissed with prejudice. Jefferson v. Conopco, No. L-7025-14 (Super. Ct. N.J., Bergen Cty., stipulation of voluntary dismissal filed December 1, 2014). The plaintiff alleged that Breyers’ use of cocoa processed with alkali (Dutch process cocoa) contains the artificial ingredient potassium carbonate, which he argued should preclude the company from labeling its products as natural. The brief stipulation indicates that each party will pay its own attorney’s fees and costs. Additional information about the lawsuit appears in Issue 531 of this Update. Issue 547
After a California federal court certified the class for liability but not for damages, the parties to a class action alleging that Jamba Juice mislabeled its smoothie kits as “all natural” despite containing synthetic ingredients like gelatin and xanthan gum have reached a settlement. Lilly v. Jamba Juice Co., No. 13-2998 (U.S. Dist. Ct., N.D. Cal., plaintiffs’ motion for settlement approval filed December 1, 2014). Under the proposed settlement agreement, Jamba Juice will remove “all natural” from its smoothie kit labeling and advertising by March 2015. The agreement will remain in force until the smoothie kits no longer contain the allegedly unnatural ingredients or the U.S. Food and Drug Administration classifies the ingredients as natural. The plaintiffs’ attorneys will also receive $425,000 in costs and fees. Additional information about the class certification appears in Issue 539 of this Update. Issue 547
A Florida resident has filed a putative statewide and nationwide class action against the Snack Factory, LLC, alleging that it deceptively represents that its Pretzel Crisps are “All Natural” despite including “unnatural, synthetic, and/or artificial ingredients, including but not limited to maltodextrin and soybean oil.” Seidman v. Snack Factory, LLC, No. 14-62547 (S.D. Fla., filed November 7, 2014). The plaintiff asserts claims as to a number of flavor varieties, some of which also contain the “unnatural” ingredients dextrose and caramel color. The plaintiff contends that he and class members paid a price premium for the product “over and above other comparable products that do not claim to be ‘All Natural,’” relying on the product labels to their economic detriment. The complaint specifies in what way the ingredients are not natural, including that some are derived from genetically modified organisms. Alleging violation of Florida’s Deceptive and Unfair Trade Practices Act, negligent misrepresentation, breach…
An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show "The Real Housewives of New York City" and talk show "Bethenny," was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014). The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not…
A federal court in California has decertified a damages class in litigation alleging that Dole Packaged Foods, LLC misleads consumers by labeling 10 of its fruit products as “All Natural Fruit” because they contain allegedly synthetic ingredients ascorbic acid and citric acid. Brazil v. Dole Packaged Foods, LLC, No. 12-1831 (N.D. Cal., order entered November 6, 2014). The court found flaws in the regression model that the plaintiff’s expert (Oral Capps) used to determine the price premium attributable to the company’s use of the “All Natural Fruit” label statements, finding that the model “does not sufficiently isolate the price impact” of the labeling statement. The court disagreed with Dole that the expert performed a “price” regression rather than a “sales” regression and thus “measured the wrong thing.” According to the court, while the initially proposed analysis differed from the one actually carried out, given that the expert had initially proposed…
Global Product Liability Partners Gregory Fowler and Marc Shelley have co-authored an article titled “Food and beverage labelling and advertising in the United States: Regulatory and litigation landmines,” appearing in the September 2014 issue of the International Bar Association’s Product Law and Advertising Newsletter. The article considers the public and private challenges facing U.S. food and beverage companies that promote their products as beneficial to health, “natural” or “all natural,” or include in their products genetically modified ingredients, high-fructose corn syrup or “evaporated cane juice.” The authors address trends in consumer-fraud lawsuits and settlements, competitor litigation and suits brought by morality and decency watchdogs. The article concludes by recommending the inclusion of a legal team in marketing strategies to enhance the likelihood that companies will successfully navigate these risks while distinguishing themselves in the marketplace. Issue 542
