In what seems likely to become a defining case on appeal, the Northern District of California (Judge Lucy Koh) granted summary judgment in a long-running food labeling class action. I’ve written several times about Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N. D. Cal.). That plaintiff alleges that many Dole products are misbranded because their labels say the products contain “All Natural Fruit.” Mr. Brazil contends this is false because the products contain ascorbic acid (commonly known as Vitamin C) and citric acid. Both of those ingredients, of course, are naturally occurring compounds found in citrus; many food manufacturers add them because of their natural preservative effects.

On December 8, 2014, Judge Koh granted summary judgment for the defendant, concluding “there is insufficient evidence that the ‘All Natural Fruit’ label statement on the challenged Dole products was likely to mislead reasonable consumers and that the label statements were therefore unlawful on that basis.” That plaintiff did not attempt to use consumer surveys to establish that the labeling statements could mislead a significant portion of the public or of targeted consumers. Instead, he relied on informal FDA statements that “natural” means 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.” (Emphasis added.) As we’ll see, that plaintiff’s failure to establish that consumers would not normally expect ascorbic acid or citric acid to be in the food doomed his claims.

The court did not address whether ascorbic acid and citric acid are “natural.” Instead, it granted summary judgment to Dole because Mr. Brazil “has offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged Dole products, ‘would not normally be expected to be in’ those products, as the FDA [informal] definition requires.” While surveys and expert testimony regarding consumer expectations are not essential elements of a plaintiff’s California consumer fraud claim, “a few isolated examples of actual deception are insufficient” under the law. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008). All Mr. Brazil offered, however, was his understanding that all of the contents, not just the fruit, were “all natural.” That testimony, without more, would be insufficient to meet his burden of proof on summary judgment.

While Judge Koh was not requiring the plaintiff to offer evidence of consumer surveys or proof that more than 50 percent of the public would be deceived, it is difficult to see how a plaintiff could satisfy its burden without a statistically-significant survey of consumers. After all, the plaintiff’s burden is to establish that a reasonable consumer would not normally expect an ingredient (here, ascorbic acid and citric acid) to be in a product. Mr. Brazil unsuccessfully attempted to overcome that obstacle by arguing that his subjective understanding could apply to the entire class.

Brazil also reinforces the importance of basic litigation techniques in class actions. That defendant used contention interrogatories asking Mr. Brazil to state all facts supporting his contention that a reasonable consumer would understand that the products do not contain synthetic, artificial, or excessively-processed ingredients (phrases taken from FDA statements). As is common in these situations, the plaintiff declined to answer substantively, promising that his expert reports would identify such facts. The expert reports, however, were silent on the topic. For defense practitioners, this is a good reminder to use contention interrogatories and to reexamine them after discovery closes. If your opponent promises to answer a contention interrogatory through expert reports but fails to do to so, that should tee up summary judgment arguments for you. That emphasizes the importance of tracking discovery responses, pressing motions to compel as needed, and tying original responses to subsequently produced material (such as expert reports) to show that your opponent cannot produce admissible evidence supporting an essential element of its claims.

How else might class action plaintiffs try to overcome the need to establish that a particular ingredient is one that reasonable consumers would not normally expect to be in the food? A food producer may want to have in-house counsel or outside counsel take note of consumer groups’ online “petitions” asking a producer to remove a product, change labels, etc. While such online petitions surely are not valid surveys or proof of what reasonable consumers truly believe, they would be inexpensive ways for class action plaintiffs to suggest that consumers were misled. Likewise, plaintiffs may use a defendant’s social media (e.g. Facebook, Twitter) to plant comments about food ingredients.

Presuming the plaintiff appeals, Brazil could lead to a significant decision from the Ninth Circuit regarding the type of proof required regarding reasonable consumer expectations in food labeling class actions.