Two days after the Center for Science in the Public Interest (CSPI) announced that Ben & Jerry’s had agreed to phase out claims that its ice creams and frozen yogurts were “All Natural,” when some product ingredients are processed, a putative class action was filed in a California federal court against the company seeking money damages for false advertising and an injunction to stop the company from making such claims. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (U.S. Dist. Ct., N.D. Cal., filed September 29, 2010).
In August 2010, CSPI claimed that 48 of the company’s products were mislabeled because they contained unnatural ingredients, and the watchdog threatened to bring its concerns to the Food and Drug Administration (FDA). More details about CPSI’s action appear in Issue 360 of this Update. On September 27, CSPI praised the company for amicably resolving the dispute; the company’s response indicated that it would remove the claims and “focus more strongly on our other core values,” such as using milk from family farms that do not use growth hormones, certified fair trade ingredients and certified cage-free eggs, as well as “suppliers that work for social justice.”
The lawsuit refers to CSPI ‘s action against Ben & Jerry’s and cites FDA regulations that prohibit the “natural” claim to be made about a product containing “color, artificial flavors or synthetic substances.” The plaintiff takes specific aim at the company’s use of alkalized cocoa. She contends that “labeling of products as ‘all natural’ carry [sic] implicit health benefits to consumers—benefits that consumers are often willing to pay a premium over comparable products that are not ‘all natural.’” Seeking to certify a statewide class of consumers, the plaintiff alleges unlawful and fraudulent business practices, false advertising and unjust enrichment. She requests restitution, an order enjoining misleading advertising, attorney’s fees, costs, and “an accounting for, and imposition of a constructive trust upon, all monies received by B&J as a result of the unfair, misleading, fraudulent and unlawful conduct alleged.”