In the past few years, plaintiffs have waged war by filing countless putative class action complaints against food and beverage manufacturers that label their products as “natural.”  Plaintiffs’ claims vary – the food product might allegedly contain a GMO or a “synthetic” ingredient – but the gist is the same: the “natural” label on the targeted product is, according to plaintiffs, deceptive, false and misleading.  Unfortunately, years of litigation, motion practice, and even judicial requests to the FDA for an administrative determination on the propriety of a “natural” label (see my related post) have provided little clarity for defendant manufacturers.  Similar cases can have very different outcomes; one case might be tossed on a motion to dismiss while the other goes on to being certified as a class action.  And, while plaintiffs have made the biggest strides in California (where more class certification motions seem to be granted), the Golden State has its own share of inconsistencies.

For example, in January, in the Northern District of California, Ben & Jerry’s won dismissal of a putative class’ claims in Astiana v. Ben & Jerry’s Homemade, Inc.  The plaintiff claimed that some of Ben & Jerry’s ice creams were mislabeled and falsely promoted as “all natural” since they contained synthetically alkalized cocoa (see Order; Melody Akhavan’s related post).  The court agreed with Ben & Jerry’s argument that class membership would be impossible to ascertain because some cocoa alkalis were natural and some were synthetic.  The court also found that the plaintiff had not established that her claims are typical of those of the class, partly because the plaintiff had not identified an ascertainable class.

Last week, a different federal judge in the Northern District of California certified a class of consumers in Brazil v. Dole Packaged Foods, LLC, a case alleging that Dole improperly labeled certain fruit products as containing “all natural fruit” (see Order).  The complaint alleged that the label was deceptive because the products contained citric and ascorbic acid which the plaintiff claimed are artificial ingredients.  Dole argued that both ascorbic and citric acid can be made by fermentation, a natural process, or by chemical synthesis and, therefore, the putative class, like the class in Astiana, was not ascertainable. But the court found this argument “unavailing” because “[i]n Astiana, the defendant sourced its accused cocoa from as many as 15 different suppliers” and “some us[ed] synthetic ingredients and others us[ed] non-synthetic ingredients” whereas “Dole affirmatively asserts that all of its suppliers use only the fermentation process . . .”  Order at 8-9 n.3.  The court concluded that “[p]ut simply, in the Ninth Circuit there is no requirement that the identity of the class members be known at the time of certification.”  Id. at 10 (internal quotation omitted).  The court went on to certify a nationwide class for injunctive relief and a California class for damages.

How could Ben & Jerry’s win dismissal of the claims against it when it admitted some of its “all natural” ice creams contained a synthetic ingredient, but Dole, which asserts there were no synthetic ingredients in its “all natural” products at all, had a class certified against it?  Maybe it’s just me, but something seems off.  It is possible that some of these issues will be addressed by appellate courts down the road, but for now, we will continue to monitor other cases to see how different courts will go on to approach similar issues.  In fact, just last week a putative class action complaint was filed against Shearer’s Foods in the Southern District of Florida.  The plaintiff alleges that the company’s Riceworks Gourmet Brown Rice Crisps are deceptively labeled as “all natural” because they contain masa corn flour, canola oil and maltodextrin, all alleged to be “unnatural.”  The setup seems similar to that in Astiana and Brazil, so it will be interesting to see what happens with the inevitable competing motions to dismiss and for class certification.