Antitrust, UCL and Privacy

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

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.

I. PREEMPTION

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