A federal court in California has granted motions to certify California classes of consumers in two separate consumer-fraud lawsuits involving the “all natural” claims on products made by Bear Naked, Inc. and the Kashi Co. Thurston v. Bear Naked, Inc., No. 11-2890, Astiana v. Kashi Co., No. 11-1967 (U.S. Dist. Ct., S.D. Cal., orders entered July 30, 2013). Details about the latter suit, a consolidated matter, appear under the plaintiff’s name Bates in Issue 408 of this Update.

The court agreed with Bear Naked that the named plaintiffs failed to sufficiently show that “natural” has a uniform definition among class members, that a sufficient number of class members would have relied to their detriment on the representation or that the company’s “representation of natural in light of the presence of the challenged ingredients would be considered to be a material falsehood by class members.” Still, the court determined that the plaintiff made a sufficient showing of materiality to justify certification of a class as to “hexane-processed soy ingredients.” This is apparently listed in federal regulations as a “synthetic organic chemical manufacturing industry chemical,” and, unlike the other ingredients, the defendant did not refute the charge that hexane is unnatural. Accordingly, the court found that common issues exist and predominate with respect to the products containing these ingredients.

Refusing to apply California law to a nationwide class of consumers under the rationale of Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), given the material differences in the consumer protection laws of various states, the court thus certified a class of “All California residents who purchased Bear Naked, Inc’s food products on or after September 21, 2007 in the State of California that were labeled ‘100% Pure & Natural’ or ‘100% Natural’ but which contained Hexane-Processed Soy Ingredients.”

The class claims against Kashi Co. involve nearly 100 products and two product representations: “Nothing Artificial” and “All Natural.” Finding that (i) common issues predominated with respect to most of the ingredients for the same reasons set forth in the Bear Naked litigation, and (ii) California consumer protection law could not be applied on a nationwide basis, the court certified a “Nothing Artificial” California class for products containing “Pyridoxine Hydrochloride, Alpha-Tocopherol Acetate and/or Hexane Processed Soy ingredients” and an “All Natural” California class for products containing “Pyridoxine Hydrochloride, Calcium Pantothenate and/or Hexane- Processed Soy ingredients.”