Defeating “Unnatural” Class Actions

On June 12, 2015 a plaintiff filed a class action lawsuit against Kraft Foods claiming that its Capri Sun beverages are not “all natural” because they contain citric acid and flavorings. “Simply put,” the plaintiff alleges in Osborne v. Kraft Foods Group, Inc., “they contain unnatural ingredients.” These allegations have become commonplace in beverage labeling class actions. Snapple, AriZona, Skinnygirl Margarita mix, and Pure Leaf Iced Tea have all faced similar accusations. The Pure Leaf class action complaint, Laboon v. Unilever U.S., Inc. filed on April 29th in the Southern District of Florida, is nearly identical in form and substance to the Capri Sun complaint. These cases highlight a prominent theme used by many class plaintiffs.

One reason why there is so much litigation in this area is that there is no generally accepted definition for “all natural.” In January 2014 the FDA issued a letter in which it declined “to make a determination … regarding whether and under what circumstances food products containing ingredients produced using genetically engineered ingredients may or may not be labeled ‘natural.’”  Moreover, the FDA has taken little action against companies for improperly using the term “natural,” according to one court in Gabriele v. Conagra Foods. This leaves the door open for class action plaintiffs to allege deceptive advertising. But recent federal court decisions suggest several strategies for defeating these types of cases.

The Northern District of California recently dismissed a claim for injunctive relief in Anderson v. Hain Celestial Grp., Inc., because the court found that it would be unlikely that plaintiff would purchase the product again in the future knowing that the defendant’s products “are not ‘natural,’” as she claimed. The Northern District of California also dismissed a class action against the Chobani yogurt company in Kane v. Chobani, Inc., where its “labels clearly disclosed the presence” of the allegedly “unnatural” ingredients. In Pelayo v. Nestle USA, Inc., the court granted Nestle’s motion to dismiss, finding that “the reasonable consumer is aware that Buitoni Pastas are not ‘springing full-formed from Ravioli trees and Tortellini bushes.’”  And in New Jersey, in Stewart v. Beam Global Spirits & Wine, Inc., the makers of Skinnygirl Margarita mix defeated class certification by showing that the plaintiffs were unable to propose a verifiable, objective method of defining class membership. Skinnygirl also succeeded in preventing class certification on similar claims in the Southern District of New York in Rapcinsky v. Skinnygirl Cocktails, L.L.C. et al. In Brazil v. Dole Packaged Foods, LLC, Judge Lucy Koh held that “absent any evidence that reasonable consumers would not normally expect citric acid and ascorbic acid to be found in the challenged Dole products, Brazil cannot rely on FDA’s informal policy to show that those consumers were likely to have been misled.”

These decisions suggest that the same tool being used by plaintiffs to file class actions can also be an effective means of defeating them. The plaintiffs must show, for example, that the product’s ingredients were “unnatural” and that the brand “all natural” was used to intentionally mislead consumers. Focusing the court’s attention on the lack of a common understanding of what “all natural” means can help unravel a class action lawsuit based on deceptive marketing.

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