Friday, June 03, 2011

The advertiser of ice cream: all natural claims and alkalization

Astiana v. Ben & Jerry's Homemade, Inc., 2011 WL 2111796 (N.D. Cal.)

Plaintiffs in this putative class action alleged that Ben & Jerry’s and Breyers misrepresented ice cream containing Dutch or alkalized cocoa as “all natural,” even though alkalized cocoa is processed with potassium carbonate, a synthetic ingredient. As the court explained, unsweetened cocoa powder has two forms—unalkalized or alkalized, both of which are safe. Alkalized is less acidic and has darker color, reduced sourness and bitterness, and improves solubility in some drinks compared to unalkalized. But alkalization also destroys many of cocoa’s flavonols, water-soluble pigments that allegedly contribute health benefits.

The Center for Science in the Public Interest sent a letter to Unilever, the parent company of Ben & Jerry's and Breyers, identifying approximately 50 products CSPI claimed were improperly labeled. One category was chocolate ice cream and frozen yogurt containing alkalized cocoa labeled "all natural." Ben & Jerry's, but not Breyers, agreed to phase out the use of "all natural" on such products. (My beloved Häagen Dazs Five also uses “all natural” on its chocolate flavor (not my favorite: try the mint and the coffee), though the ingredient list includes cocoa processed with alkali.)

Plaintiffs filed on behalf of a nationwide class and a California class, alleging consumer protection violations (“unlawful” conduct based on violation of California’s Sherman Food, Drug, and Cosmetic Law; violation of California law incorporating all relevant regulations of the FDA; and “fraudulent” conduct) as well as unjust enrichment.

Defendants argued this claim was not plausible; the court found that the defendants’ arguments, though somewhat persuasive, involved questions of fact not resolvable on a motion to dismiss.

Defendants made the now-usual standing arguments, claiming that plaintiffs received the benefit of their bargain and consumed the product, despite defendants’ guarantee of satisfaction “or your money back.” Plaintiffs argued that they adequately alleged that the ice cream they bought contained potassium carbonate, an undisclosed synthetic ingredient, and that had they known that the ice cream was not “natural” they would not have bought it. Moreover, defendants haven’t offered to return their money and are defending the lawsuit instead. The court found adequate standing allegations.

The complaint was also pled with sufficient particularity. Defendants argued that plaintiffs’ theory requires “all natural” to be a term of art. Thus, to be deceived, a consumer would have to be familiar with the FDA’s “natural” policy and USDA regulations about what a “synthetic” is, then interpret defendants’ “all natural” label as a representation that the alkali used in the Dutch cocoa process is not synthetic as defined by the USDA (which would apparently mean in this instance that it is sodium carbonate) and buy based on that belief. But false advertising law focuses on a reasonable consumer, and defendants argued that it was not plausible that a reasonable consumer would think this way. The court found that none of this was a failure to plead with particularity: the statements were allegedly misleading because defendants didn’t disclose that the alkalizing agent was a synthetic, potassium carbonate. Defendants were arguing factual disputes.

Preemption: Non-identical state requirements are preempted. Defendants argued that plaintiffs were seeking to impose disclosure requirements different from the FDA’s policy on natural claims, though they admitted that the FDA does not require a statement of which alkali was used. Defendants contended that the FDA’s policy was an advisory opinion that the FDA was obligated to follow, and that plaintiffs were seeking to create a “natural” rule where the FDA has not.

Plaintiffs responded that the FDA has not regulated “natural” or “all natural,” and thus preemption could not apply. The court applied a presumption against preemption in the area of food labeling, historically governed by state law. The NLEA governs statements about nutrients such as fiber and fat, and “diet” as applied to soft drinks, but there’s no regulation of the use of “natural” on food labels, so there was no preemption. Nor was abstention appropriate; abstention doesn’t generally involve deference to a federal agency.

The court refused to dismiss the plaintiffs’ claim for restitution on a theory of unjust enrichment based in quasi-contract. In California, unjust enrichment is not a cause of action, but a principle synonymous with restitution, which can be alleged in connection with a quasi-contractual claim.

Fraud: defendants argued that plaintiffs couldn’t plausibly claim that defendants acted knowingly and with intent to deceive, because it didn’t make sense to allege that, though defendants complied with FDA regulations by disclosing the ingredients, they deliberatedly didn’t disclose use of potassium carbonate in order to dupe consumers into believing they were getting cocoa alkalized with sodium carbonate. Plaintiffs responded that they alleged that defendants knew or recklessly disregarded the fact that their ice cream was not “all natural,” and thus knew the products were misleadingly labeled. The court found that issues of reliance and materiality were too fact-dependent to be resolved on a motion to dismiss.

The fundamental dispute over what “natural” means was likely to present factual disputes. “The only FDA guidance appears to be a distinction between ‘natural’ and ‘synthetic’ in the ‘policy,’ but that definition in the Federal Register is qualified as meaning something that would ‘not normally be expected to be in food.’ Surely, that characterization raises multiple linguistic and philosophical questions, not to mention factual questions.” The way I’d frame the court’s conclusion is something like: consumers may well have nonspecific expectations about what “natural” means but lack the specific knowledge to apply it, so telling them that the cocoa was alkalized—even telling them that it was alkalized with potassium carbonate—wouldn’t help them apply their preference for “natural” foods. One way to interpret this would be to say that, then, consumers don’t really care about “natural.” But another is that they do care but seek the assistance of truthful experts—and the producer can be expected to be expert—in implementing those preferences. These are both factual and philosophical questions about what we want consumer protection law to be doing in a highly complex consumer society in which consumers can’t reasonably be expected to understand the details of many claims.

Defendants, in another increasingly common move, sought to strike the class allegations, arguing that the class was not ascertainable because plaintiffs didn’t plead facts showing that any member of the proposed class knew which alkali would have been used in the ice cream they bought. So, because some ice cream might have had sodium carbonate and some potassium carbonate, and because the label wouldn’t have disclosed which, even the most attentive consumer couldn’t know whether she was in the class. But the class definition is those class members who bought products labeled “all natural” but contained alkalized cocoa processed with a synthetic ingredient; those people couldn’t self-identify.

Defendants also argued that a class action was not superior because of defendants’ money-back guarantee.

Certification decisions are normally done in motions under Rule 23. A few courts have struck class allegations using Rule 12(f), but the court found that inappropriate. The class allegations were relevant to the subject matter of the litigation, and not redundant, immaterial, impertinent or scandalous, and thus not subject to Rule 12(f).

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