Another consumer class action over allegedly false and misleading “natural” claims survived a motion to dismiss in the Southern District of New York on May 15, 2014.  At issue in Ault v. J.M. Smucker Co. is whether “All Natural” claims made on labels of Smucker’s Crisco branded vegetable oils are false and misleading.  The plaintiffs allege in their complaint that the claim is misleading for two reasons: 1) the oils are derived from genetically modified vegetables which are not natural, and 2) the oils are so heavily processed that they bear no chemical resemblance to the ingredients from which they are derived.   

In response to the complaint, Smucker’s filed a motion to dismiss on the grounds that FDA policies and regulations preempt the plaintiffs’ state false advertising claims, and argued that the Court should decline to enter that “All Natural” debate and defer to the FDA as it has primary jurisdiction.  On May 15, 2014, Judge Crotty of the Southern District of New York denied the motion to dismiss.

This result is not surprising given that the FDA has consistently refused to offer a definition of “natural” that settles common issues of contention like genetically modified organisms, even when faced with industry groups and judges clamoring for guidance on this issue.  The May 15, 2014 order stressed the FDA’s silence on this issue and cited heavily to the agency’s January 6, 2004 letter to three district court judges of the Northern District of California and the District of New Jersey, which directly rejected the courts’ request for the FDA to weigh in on whether products containing genetically modified ingredients may or may not be labeled “natural.”  Judge Crotty expressed concern that finding preemption or primary jurisdiction in the face of this regulatory hole would leave deceived consumers with no recourse under either state or federal law.

This outcome serves as an illustration of another emerging trend in food labeling consumer class actions:  class certification is an easier target for defendants than agency preemption, especially in cases where the agency has not directly spoken on an issue through notice and comment rulemaking.  For more information about this trend see Gregory Sater’s post on the Chipotle “Naturally Raised” case and a recent article by Dan Silverman, Gregory Sater, and Bety Javidzad on the POM Wonderful decertification decision.