Antitrust and Consumer Protection
Competition: Fall 2014, Vol. 23, No. 2
Content
- "All Natural" Class Actions: a Plaintiff Perspective
- Appellate Courts Grapple With the Foreign Trade Antitrust Improvements Act—Plaintiffs' Perspective
- Cafa: Recent Developments On the Jurisdictional and Settlement Fronts
- Chair's Column
- Editor's Note
- Federal and State Class Antitrust Actions Should Not Be Tried In a Single Trial
- Ftc V. Wyndham Worldwide Corporation, Et Al. and the Ftc's Authority To Regulate Companies' Data Security Practices
- Joint Trial of Direct and Indirect Purchaser Claims
- Masthead
- Plaintiff Perspective: the Long Arm of State Antitrust Law
- Recoveries For Violations of Federal and California Antitrust Statutes Should Not Be Apportioned
- So Your Suppliers Conspired Against You: An Antitrust Class Action Opt-out Primer
- The Ftaia Limits the Extraterritorial Reach of State Antitrust Laws
- The Misapplication of Associated General Contractors To Cartwright Act Claims
- The Problem of Duplicative Recovery Under Federal and State Antitrust Law
- Why Associated General Contractors Should Be Used To Assess Standing In Cartwright Act Cases
- Defense Perspective: "All Natural" Class Actions
DEFENSE PERSPECTIVE: "ALL NATURAL" CLASS ACTIONS
By Rhonda R. Trotter1 & Oscar Ramallo.2
Since 2011, the courts have been flooded with hundreds of complaints involving "natural" and "all natural" advertising claims, with the majority of filings in California.3 Most of the cases have involved food and beverages, but they have also been brought against defendants offering products as diverse as cosmetics4 and diapers.5 Many cases have led to seven-figure settlements, including a $5 million settlement by a Kellogg subsidiary for Pita Crisps and other products, a $3.4 million settlement by Trader Joe’s, and a $9 million settlement from PepsiCo for Naked Juice. How can a defendant avoid a multi-million dollar payout?
As discussed below, arguments that labeling claims are preempted by United States Food and Drug Administration ("FDA") regulations have been a first line of defense. But these arguments have been hampered by the FDA’s recent decision not to decide which "all natural" claims are proper. Defendants have accordingly turned to arguing in court that their "all natural" claims are not misleading and have achieved victories at the class certification, summary judgment, and the pleading stages. Additionally, defendants have challenged plaintiffs on the traditional prerequisites to class certification, with the greatest successes on ascertainability of the class and predominance of common issues with respect to damages.