Six weeks after a judge allowed a similar lawsuit vs Whole Foods over its use of leavening agent sodium acid pyrophosphate (SAPP) in ‘all-natural’ products to proceed in California (click HERE ), a similar lawsuit has been filed in Arkansas.
In the latest complaint, plaintiff Connie Stafford says Whole Foods’ 365 Everyday Value Cola is labeled as ‘all-natural’ but contains caramel coloring, tartaric acid, citric acid and carbon dioxide; while its 365 Everyday Value Ginger Ale and Root Beer contain caramel coloring, citric acid and carbon dioxide.
Stafford, who filed her lawsuit just days after a judge approved a $3.4m settlement of a lawsuit accusing Trader Joe’s of falsely advertising products as ‘all natural’, said: “Consumers reasonably expect that products carrying an ‘all-natural’ claim must not contain any artificial flavoring, color ingredients, chemical preservatives, or artificial or synthetic ingredients, and be only minimally processed by a process that does not fundamentally alter the raw product.
“A reasonable consumer would understand that ‘natural’ products do not contain synthetic, artificial or excessively processed ingredients. The label on the Whole Foods products - aside from being unlawful under Arkansas law - is also misleading, deceptive, unfair and fraudulent.”
All-natural label is misleading, deceptive, unfair and fraudulent, alleges plaintiff
Stafford also alleges that Whole Foods’ 365 Everyday Value Organic Tomato Ketchup and 365 Everyday Value Organic Chicken are misbranded:
“Defendant unlawfully labeled some of its food products as being ‘Organic’ when they actually contain non-organic ingredients… A reasonable consumer would understand that ‘organic’ products do not contain synthetic, artificial or excessively processed ingredients.”
Attorney: A complaint must state facts, not mere conclusions
While Stafford’s concerns about whether the Whole Foods beverages are ‘all-natural’ echo those in scores of other lawsuits (which cash in on the fact that there is no legal definition of ‘natural’) her concerns about the organic products are unusual in that there are defined standards underpinning products certified as organic, leaving little room for confusion.
With this in mind, it is odd that Stafford doesn’t specify which ingredients or processing methods she takes issue with in the two organic products cited in the complaint, say attorneys.
And this lack of detail could be a problem, Kristen Polovoy of Montgomery, McCracken, Walker & Rhoads LLP told FoodNavigator-USA.
“Arkansas’ Rules of Civil Procedure establish a fact-pleading system… which means that Stafford’s complaint ‘must state facts, not mere conclusions, in order to entitle the pleader to relief’. [But] plaintiff did not specify the ingredients or processing methods that would, as she claims, make the products at issue ‘non-organic’.
“Arguably, her omissions set up her complaint - as it is currently worded - for a motion to dismiss by Whole Foods... It would then be up to the court whether to afford plaintiff leave to amend her complaint to provide the required facts.”
Organic claims should be thrown out unless plaintiff can be more specific
David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, agreed that the organics claim could be thrown out unless the plaintiff was able to be more specific, adding: "While they allege that the products contain substances that do not meet the organic standards, they do not specify the ingredients they challenge.
"Under the rules requiring specificity of pleading they should be required to identify the ingredients."
Meanwhile, the allegation that a 'reasonable consumer would understand that ‘organic’ products do not contain synthetic, artificial or excessively processed ingredients' should be stricken because the FDA and USDA set rules for organic products, ingredients and labeling, he observed, "and states, including state courts, cannot set different standards. That is clearly pre-empted."
PopChips, Kellogg, PepsiCo, Trader Joe’s have all settled ‘all-natural’ lawsuits recently
While scores of ‘all-natural’ lawsuits are still moving through the courts, none have gone to trial, and several high-profile defendants including Kellogg, Trader Joe’s, Pepsi and Pop Chips have decided to settle in recent months to avoid the expense of protracted litigation.
They have also agreed to stop using the term ‘all-natural’ to describe certain products, although they have not admitted any liability.
Are all-natural claims worth the hassle?
While data from Mintel shows that the percentage of new products featuring ‘natural’ claims in the US actually rose slightly in 2013, many market watchers claim that things have changed in recent months, with large firms starting to quietly remove ‘all-natural’ claims from packaging.
Speaking at the Natural Products Expo West show in March, United Natural Products Alliance (UNPA) president Loren Israelsen said: "At the next Expo West you'll see the word 'natural' being used far less.
"I think we're seeing the end of the golden age of natural. We'll see more words like 'Simply' instead."
The case is Connie Stafford v. Whole Foods Market California Inc. 14-cv-00420.