Attorney: ‘I don’t think food is the next tobacco… Virtually all 'all-natural' cases face significant hurdles’

By Elaine Watson

- Last updated on GMT

Related tags Class action

Several large companies including Kellogg/Kashi have recently settled '100% natural' lawsuits, but scores are still moving through the courts
Several large companies including Kellogg/Kashi have recently settled '100% natural' lawsuits, but scores are still moving through the courts
While new class action lawsuits over ‘all-natural’ claims on food labels are still filed in the ‘food court’ in California on a weekly basis, some recent orders from judges handling these cases present a glimmer of hope for beleaguered food & beverage firms, says one attorney.

Stacy Hovan, a California-based attorney at law firm Hogan Lovells, was speaking to FoodNavigator-USA ahead of our live online forum on natural and clean label trends on September 30 (click HERE​).

Among other things, said Hovan, plaintiffs have struggled to convince courts that a whole class of shoppers has the same notion of what ‘natural’ means (‘natural’ is a subjective term); they have hit problems where ‘natural’ claims did not consistently appear on product labels over the class period; and they have found it hard to come up with a viable model for calculating damages.

And one or more of these factors ultimately stop most cases from getting anywhere.

Ruling in Wesson oils case could be beginning of the end of natural/GMO class actions

In a July order on a high-profile case* vs ConAgra over ‘100% Natural’ labels on Wesson Oils (which the plaintiffs claimed were derived from genetically engineered crops), noted Hovan, Judge Margaret Morrow denied certification to a class of consumers in part because the plaintiffs had failed to propose a damages model that would calculate how much more shoppers had paid for the ‘all-natural’ oils versus what they would have paid had they known the oils were from GM crops.

Judge Morrow also noted that plaintiffs had no consumer survey data to support their allegations about how shoppers reacted to the labels in question, while their evidence “did not link​” consumer understanding of ‘100% Natural’ to the GMO issue specifically.

“The court held that the subjective meaning of ‘natural’ caused the proposed damages model to be overbroad.”

Hovan added: “The judge said that the damages model must be tied to people that were misled in a very particular way over the GMO issue. That’s a huge challenge. I think the ruling in the Wesson oils case could be the beginning of the end of these natural/GMO class actions, so it’s definitely one to watch.”

The case was just one of several where judges have rejected damages classes based on the inability to calculate class wide damages—based in part on the Supreme Court’s decision in Comcast Corp. v. Behrend, which held that there can be no class where a plaintiff does not show there is a way to calculate damages on a class-wide basis, she added.

Virtually all such cases face significant hurdles in meeting the requirements for class certification

Meanwhile, several judges have recently ruled that classes of consumers are not ascertainable when there are significant changes in product labeling throughout the class period, and products are sold concurrently with and without the challenged label statements, said Hovan, citing Jones v ConAgra and Bruton v. Gerber Products Co.  

“These decisions suggest that plaintiffs will have difficulty certifying consumer classes in which a challenged food label was not used exclusively throughout the class period on an easily identified product or set of products.”

She added: “Virtually all such cases face significant hurdles in meeting the requirements for class certification. As the landscape changes, I think the plaintiff’s bar will be more selective. I also think that the courts are becoming a bit more skeptical. I don’t think that food is necessarily the next tobacco.”

*The case is In Re ConAgra Foods Inc., (2:11-cv-05379), in the U.S. District Court for the Central District of California. Plaintiff Robert Briseno filed his complaint in June 2011, but since then, the case has grown to include plaintiffs from 10 more states including Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota and Texas.

Sign up for FoodNavigator-USA's live online forum on Natural & Clean Label Trends​ on September 30.

Read our attorney vox pop: Are all natural claims worth the hassle?

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