A federal judge in California has refused to dismiss proposed class actions alleging that Ben & Jerry’s and Breyers ice cream products were falsely advertised as all natural. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 PJH (U.S. Dist. Ct., N.D. Cal., decided May 26, 2011); Thurston v. Conopco, Inc., No. 10-4937 PJH (U.S. Dist. Ct. N.D. Cal., decided May 26, 2011). Filed after the Center for Science in the Public Interest drew attention to the issue, the complaints argue that two units owned by Unilever PLC “misrepresented ice cream containing ‘Dutch’ or ‘alkalized cocoa’ as ‘all-natural’” even though the ingredient is purportedly processed with synthetic potassium carbonate. The defendants had sought to dismiss both actions on the grounds that plaintiffs did not demonstrate an injury resulting from the “all natural” claim and could have easily applied for a refund if dissatisfied.

Noting that plaintiffs may very well “have no actionable claims,” the court reasoned that, “If the plaintiffs did indeed purchase the ice cream based on the representation that it was ‘all natural’ and if that representation proves to be false, then they arguably have suffered an injury in fact.” The court also found that the state law claims were not preempted by federal laws, which do not regulate “the use of an adjective such as ‘natural’ on a food label,” and refused to strike the plaintiffs’ class averments until formal class certification is filed.