In a proposed class action lawsuit* filed in the eastern district of New York, plaintiff Josh Berger explains that Forager's juices are made via two production steps: First juice is pressed out of shredded fresh produce. Next, they undergo HPP – whereby the bottles of juice are put into a high-pressure chamber that is flooded with cold water and pressurized to kill pathogens without high heat.
Forager, alleges Berger, “had a duty to disclose the additional production step [ie.HPP] because it voluntarily provided limited information [ie. it markets the juices as ‘cold pressed’] in a manner calculated to mislead, owing to not disclosing the whole truth…
“By voluntarily including the first production step… and not disclosing any second… reasonable consumers get the impression the products are only cold-pressed.”
Unlike plaintiffs in some related cases, Berger does not spend much time trying to build a case that HPP has deleterious effects on the nutrients in beverages, although he does argue that HPP “causes a compositional change to the products by reducing the biological, enzymatic and bacterial activity which existed after cold-pressing to an extent that is material to reasonable consumers.”
Attorney: This is really ridiculous
Forager - which references HPP on its website and has never hidden the fact it is using HPP to preserve its products - is not commenting on the case.
However, attorneys contacted by FoodNavigator-USA predicted it was unlikely to go far, although they were seeing a rise in HPP-related demand letters.
One legal source told us: “This really is ridiculous. It’s one thing if a company is making an affirmative claim such as ‘never heated’ or ‘never pasteurized’ or something, but saying that marketing something as ‘cold-pressed’ is deceptive because you’re not also talking about HPP on pack is a real stretch to me.”
He also noted that a high profile case against Hain Celestial (BluePrint) over ‘raw’ claims on HPP products was thrown out of court in 2014, while a similar case filed against Suja was voluntarily dismissed the same year.
High pressure processing (HPP) - whereby foods or beverages (in their final packaging) are put into a high-pressure chamber that is flooded with cold water and pressurized in order to kill pathogens without heat – is more expensive that thermal pasteurization.
However, it’s popular among premium juice makers because it enables products to retain the texture, taste, and nutrition of freshly squeezed juice (which has a shelf-life of a few days) but permits a shelf-life long enough (a few weeks) to secure national distribution.
Ryan Kaiser, chair of the class action and business litigation team at law firm Amin Talati, told FoodNavigator-USA: “As is typical with these kinds of suits, we’re seeing a lot of ‘specialization’ in which a firm (or pair of firms) who have identified a particular fact-pattern or issue will blanket the market with demand letters. In this case, these particular firms are targeting HPP products.”
But he added: “This modified theory (i.e. if you say ‘cold pressed,’ consumers assume that you haven’t conducted any additional processing) is pretty shaky. It’s an implied claim, which would seem to be less than ideal for class treatment, as it will be very difficult to establish that all consumers read it the same way.
“Moreover, at the Motion to Dismiss stage, I question whether the ‘reasonable consumer’ who is familiar with cold pressed products would presume no additional processing took place when they can see the increased shelf-life of the product on the label.”
Grasping for straws
He added: “This latest complaint certainly does seem to be grasping for straws… I interpret it to mean the firm is either running out of targets, or its theories have been so whittled down by Motions to Dismiss that they’re running out of runway.
In other HPP-related lawsuits, for example, said Kaiser, plaintiffs “have gone to much greater lengths to illustrate precisely why alternatives to pasteurization are so offensive to one seeking a ‘raw’ or ‘purely cold-pressed’ product. For instance, while traditional pasteurization removes pathogens, it is also believed that it has a negative effect on the nutritional values of the product. It has long been these attorneys’ view that alternate methods of pasteurization, such as HPP have the same effects. The current complaint barely makes mention of this.”
HPP and heat
What plaintiff’s attorneys also fail to acknowledge, he added, “is the fact that many HPP procedures are performed in refrigerated conditions which prevent the materials from becoming heated. In those instances, the argument that HPP raises temperatures to the point where the nutritional integrity of the food has been compromised falls away.
“I suspect that’s the reason we see a lot of these cases get dismissed. That, or a cost-benefit analysis by defendants that it often makes more sense to simply pay to make these go away…”
"This case is a stretch. First, the allegation that HPP somehow diminishes the nutritional value of the juices is entirely conclusory, and has been rejected by at least one court at the motion to dismiss stage. Second, courts generally do not allow 'fraud by omission' claims such as this, except in cases where there is a fiduciary duty or involving product safety, although one New York court recently has.
"Finally, even if this claim gets past a motion to dismiss, I can’t imagine a court certifying the nationwide class the plaintiff seeks, given that most state laws do not recognize this sort of 'fraud by omission' claim."
Angel Garganta, Partner and Co-Chair, Class Action Defense Group Venable LLP
"I don’t believe the legal theory has merit. Omissions can be actionable under consumer fraud statutes, and technically true statements may require additional information to avoid being false and misleading. But requiring disclosure of a second production step based on what the first step allegedly implied to this particular consumer is going too far...
"Motions to dismiss can be tough in these labeling cases, but this case seems like a particularly worthy candidate for a dismissal."
Amanda Groves, partner, Winston & Strawn LLP
*The case is Berger v. Forager Project, LLC, 2:17-cv-06302 filed in the eastern district of New York, October 28, 2017. Berger is represented by Joshua Levin-Epstein of Levin-Epstein & Associates and Spencer I. Sheehan of Sheehan & Associates, P.C.
Similar cases - Pizzirusso v. World Waters (WTRMLN WTR), Davis v. Hain Celestial Group (BluePrint), and Davis v. PepsiCo (Naked) - filed by the same law firms cases have been voluntarily dismissed this year, according to court records.