Antitrust, UCL and Privacy

Competition: Fall 2014, Vol. 23, No. 2

"ALL NATURAL" CLASS ACTIONS: A PLAINTIFF PERSPECTIVE

By Jill M. Manning1

"Organic," "100% Natural," "Pure," "Free-Range," "Pesticide-Free," "Whole Wheat," "Reduced Fat," "0g Trans Fats," "Low Sodium." The formerly routine trip to the grocery store has turned into a maddening, thesaurus-requiring, label-deciphering exercise. Why the sudden explosion of health-related food labels? The consumers’ desire and willingness to pay more for "healthy" products has caught the attention of the food industry. Food manufacturers, in turn, are seeking to take advantage of this trend by advertising their products as "All Natural" and "100% Natural," even when they are not. Consumers are challenging the legality of these types of labels when products contain artificial ingredients, such as genetically modified organisms ("GMOs"). The federal courts of California have become a common venue for these cases, due to California’s expansive consumer protection statutes, with many now referring to the federal court in the Northern District of California as the "Food Court."2

How can a plaintiff successfully prosecute an "all natural" class action? Surviving a motion to dismiss is the first step. Defendants’ primary jurisdiction arguments have lost steam since the FDA expressly declined the invitation of several federal courts to define what the term "natural" means on a food product label. With most cases now proceeding to the class certification phase of litigation, defendants have most often challenged the requirements of ascertainability and predominance of common issues. Although courts have issued opinions both granting and denying class certification in "all natural" cases for a variety of reasons, plaintiffs who can demonstrate that the class is ascertainable and that common issues predominate over those affecting individual ones are most likely to prevail on a class certification motion.

I. SURVIVING A MOTION TO DISMISS BASED ON PRIMARY JURISDICTION

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