A federal court in California has denied the plaintiff’s motion for class certifica- tion in a suit alleging that Ben & Jerry’s Homemade deceives consumers by using “all natural” on labels for ice cream, frozen yogurt and popsicle products that contain alkalized cocoa. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (U.S. Dist. Ct., N.D. Cal., decided January 7, 2014). Additional details about the lawsuit appear in Issue 366 of this Update. The action followed the court’s September 2012 denial of final approval for a class-action settlement in the case on the basis of issues raised by Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012).

Among other matters, the court agreed with the defendant that the plaintiff failed to establish that the class was ascertainable and that common issues predominate over individual issues. While the case was initially brought on behalf of a nationwide class of consumers, in its current posture, a California- only damages class was at issue. According to the court, the problem with ascertaining the class, defined as “persons who bought Ben & Jerry’s labeled ‘all natural’ which contained alkalized cocoa processed with a synthetic ingre- dient,” was that the plaintiff had not shown “that a means exists for identifying the alkali in every class member’s ice cream purchases. . . . Defendant uses cocoa that is sourced from as many as 15 different suppliers,” one of which  “did not know which alkalizing agent was used in every instance” in the cocoa provided to Ben & Jerry’s. Other sources provided Ben & Jerry’s with “mix-in” ingredients made from alkalized cocoa, and they also “did not identify the specific alkalizing agent used in processing the alkalized cocoa.”

As to predominance, the court determined that the plaintiff failed to meet “her burden of showing that there is a classwide method of awarding relief that is consistent with her theory of deceptive and fraudulent business practices, false advertising, or common law fraud (or the alternative theory  of restitution based on quasi-contract).” Apparently, the plaintiff did not offer expert testimony to demonstrate “that the market price of Ben & Jerry’s ice cream with the ‘all natural’ designation was higher than the market price of Ben & Jerry’s without the ‘all natural’ designation. . . . More importantly, plain- tiff has not offered any expert testimony demonstrating a gap between the market price of Ben & Jerry’s ‘all natural’ ice cream and the price it purportedly should have sold for if it had not been labeled ‘all natural’—or any evidence demonstrating that consumers would be willing to pay a premium for ‘all natural’ ice cream that was made with cocoa alkalized with a ‘natural’ alkali and did in fact pay such a premium.”

The court also found that the plaintiff’s claims were not typical of the class,   “in part because she has not identified an ascertainable class.”The defendant contrasted the plaintiff’s deposition testimony that the “all natural” label was all that mattered in her purchasing decision with an expert survey showing that 97 percent of consumers said that it did not matter if the product contained cocoa processed with a synthetic alkali. The company further  noted that the plaintiff claimed injury on the basis of “disruption” to her “vibe,” but presented no evidence that other consumers shared this view. She also sought to represent a class of consumers who purchased 27 products that she did not purchase.