Two recent district court decisions emphasize that food labeling class action defendants must carefully review complaints to identify what each named plaintiff contends it reviewed and whether the allegedly deceptive statements even affected the named plaintiff’s decision to purchase a product.  As you might imagine, plaintiffs often string together unrelated allegations that have nothing to do with their purchases.  If a defendant connects the dots and shows just how unrelated those allegations are, you have a much better chance of succeeding early in the case.

The first case involves five gallon bottled water that is municipal tap water that the seller put through a purification process.  In The Chicago Faucet Shoppe, Inc. v. Nestle Waters North America, Inc., No. 12 C 08119 (N.D. Ill. 2/11/14), the plaintiff alleged that the defendant failed to disclose that the water is municipal tap water and not natural spring water. 

Taking a swipe at the federal preemption defense, the Ninth Circuit broadly interpreted federal regulations on nutritional content to allow state law claims in a class action regarding labeling of sunflower seeds. Lilly v. ConAgra Foods, Inc., No. 12-55921 (9th Cir. Feb. 20, 2014) (reversing dismissal of California state law claims).

Anyone who has eaten sunflower seeds knows you don’t eat the shells. However, a plaintiff brought a class action lawsuit claiming that the sodium content of the edible coating of those shells must be disclosed as part of the nutritional information on the packaging. Apparently, some consumers ingest some of the “Ranch” or “Nacho Cheese” coating when they crack open the shells with their teeth. The causes of action were the typical claims under California’s Consumer Legal Remedies Act (CLRA), unfair competition law and false advertising law.

The California district court dismissed the entire complaint, finding that the plaintiff’s

Another recent decision from the Northern District of California provides defendants with reason for cautious optimism regarding food labeling class actions.  In Sethavanish v. ZonePerfect Nutrition Co., No. 12-20907-SC (N.D. Cal. Feb. 13, 2014), the court denied the plaintiff’s motion for class certification.  That plaintiff alleged that the “all natural” representations on ZonePerfect bars were false and misleading because the bars contain at least one of ten specified non-natural ingredients.  The plaintiff alleged that she regularly purchased those bars for her then-fiancé, who was an active-duty Marine who eventually deployed overseas.  The plaintiff alleged that she and her fiancé relied on those representations and paid more for the ZonePerfect bars than she would have paid for other bars that were not all natural.  She alternatively alleged that she would have purchased another brand of nutrition bar that truly was all natural.

In ruling on class certification, the court

In important decision for food manufacturers, the Northern District of California recently denied class certification in an “all natural” putative class action.  In Astiana v. Ben & Jerry’s Homemade, Inc., No. C 10-4387-PJH (N.D. Cal. Jan. 7, 2014), the plaintiff alleged that packaging and advertising for ice cream products were deceptive and misleading because those products contained alkalized cocoa but were labeled “all natural.”  This case began in 2010, and the district court granted preliminary approval of a class action settlement in March 2012.  Following the Ninth Circuit’s opinion in Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. 2012), however, the district court denied final approval based on problems with the claim procedure, amount requested for fees and costs, and the cy pres distribution of unclaimed funds.  Thus, the case proceeded to class certification briefing.

The district court identified several problems with the proposed class

Litigation surrounding “all natural” claims has been ramping up, and settlements are on the rise.

Naked Juice paid $9 million dollars to settle claims about the “all natural” branding of its juices in 2013.  As of February 6th, Trader Joe’s is following suit and plans to pay out $3.38 million dollars in addition to discontinuing the use of “all natural” and “100% natural” on products that include ascorbic acid, cocoa processed with alkali, sodium acid pyrophosphate, vegetable mono- and diglycerides, and xanthan gum.

The FDA’s failure to define “natural” is contributing to the flurry of “all natural” consumer class actions, and there is no sign that the FDA plans to provide a definition anytime soon.  On January 6, 2014 the FDA declined a request from three federal judges for clarification of the meaning “natural.”

With little guidance from the FDA, companies are trying to find their own ways of avoiding costly lawsuits.  For some, re-branding is the

A recent federal court decision rejected a preemption argument under the Food, Drug, and Cosmetic Act and the Nutrition Labeling and Education Act regarding Smart Balance “fat-free” milks.  Admittedly, those defendants advocated a novel preemption theory.  It also did not help that a competing product used labeling that the plaintiffs acknowledged complied with all federal laws and would not provide a basis for state law claims.

In Koenig v. Boulder Brands, Inc., No. 13-CV-1186 (ER) (S.D.N.Y. Jan. 31, 2014), the plaintiffs alleged that the defendants deceptively labeled milk products as “fat free” when they truly contained one gram of fat per serving.  The defendants added an Omega-3 oil blend to fat-free milk, so the product contained less than 0.5 gram of milk fat per serving, but contained one gram of fat per serving due to adding the oil blend.  As is common in these types of