A federal court in California has decertified and entered summary judgment against a statewide class alleging that AriZona Iced Tea beverages with “All Natural,” “100% Natural” and “Natural” labels violated state consumer protection laws because they contain high-fructose corn syrup (HFCS) and citric acid, ingredients alleged by the plaintiffs to be man-made. Ries v. AriZona Beverages USA LLC, No. 10-01139 (U.S. Dist. Ct., N.D. Cal., San Francisco Div., decided March 28, 2013). Additional information about this case and similar litigation before a New Jersey court appears in issues 360, 408 and 463 of this Update.

According to the court, the plaintiffs failed to produce any evidence or timely identify any expert who could prove that HFCS and citric acid are not natural. They claimed that they would be able to do so during the “merit state of discovery,” but failed to produce such evidence within the court’s discovery deadlines. Nor, according to the court, had the plaintiffs produced any evidence from which damages may be assessed.

The plaintiffs apparently asked the court to “take judicial notice of United States Patent law,” to determine that HFCS is not natural “because patents have been issued for the process of producing it.” Noting that “United States Patent law” is not a proper subject of judicial notice, the court denied the request and further observed, “plaintiffs have cited no legal authority supporting their contention that if the process to produce an ingredient is patented, that fact, in and of itself, automatically renders it artificial. This is merely an extension of their rhetoric that HFCS is artificial because it ‘cannot be grown in a garden or field, it cannot be plucked from a tree, and it cannot be found in the oceans or seas of this planet.’ In the face of a motion for summary judgment, rhetoric is no substitute for evidence.”

Given that the defendants did not object to the plaintiffs’ apparent abandonment of their false labeling theory, the court considered whether the plaintiffs could prove their theory that the product labels are true but still confusing because consumers do not know what “all natural” means. In this regard, the court determined that the plaintiffs could not prevail because they failed to “demonstrate by extrinsic evidence, such as consumer survey evidence, that the challenged statements tend to mislead consumers. . . . They have neither intrinsic evidence that the labels are false (because HFCS and citric acid are not natural) or [sic] extrinsic evidence that a significant portion of the consuming public would be confused by them.”

As for the plaintiffs’ failure to introduce evidence on damages to prove “the difference between the value of an AriZona Iced Tea billed as all-natural and the value of a comparable beverage not marketed or sold at a premium due to such claims,” the court ruled that this failure “alone provides an independent and sufficient basis to grant defendants summary judgment.” The plaintiffs had not offered “a scintilla of evidence from which a finder of fact could determine the amount of restitution or disgorgement to which plaintiffs might be entitled if this case were to proceed to trial.”

Finding that plaintiffs’ counsel had been “dilatory” and “failed to prosecute this action adequately,” the court was compelled to decertify the class for failure to meet the requirements for adequacy of representation under Rule 23(a)(4).