Last year saw a trend in consumer class actions attacking advertising for products labeled as “all natural.”  The cases produced mixed results, and the extent to which this theory will succeed remains unclear.  Some cases settled.  See, e.g.,Trammell v. Barbara’s Bakery, 12-cv-02664 (N.D. Cal. June 21, 2013).  Others were dismissed. See, e.g., Rapcinsky v. Skinny Girl Cocktails LLC, 11-cv-6546 (S.D.N.Y. Jan. 1, 2013).  Some were allowed to proceed.  As this litigation unfolds, plaintiffs are trying a new, similar theory — that advertising products as “raw” is misleading.

The dismissals in the “all natural” cases often focused on the plaintiffs’ inability to define “all natural.”  Without a plausible definition, a plaintiff cannot state a cognizable claim that he or she was deceived by the phrase.  See, e.g., Pelayo v. Nestle USA Inc., 13-cv-5213 (C.D. Cal. Oct. 25, 2013).  Dismissals based on this issue appeared to have more success where the product at issue contained synthetic or processed ingredients.  However, cases involving products containing genetically modified organisms, or “GMOs,” seemed more immune to this theory.  See, e.g., Parker v. J.M. Smucker Co., 13-cv-00690 (N.D. Cal. Aug. 23, 2013) (motion to dismiss denied based on the “simple[] argument” that consumers would assume products labeled as “all natural” would not contain bioengineered ingredients).

These cases raised two other particular issues as well, namely, whether the cases were preempted or fall under the primary jurisdiction doctrine.  The results of those defense have been mixed too.  The issue with preemption is that the FDA has not yet indicated when an “all natural” label is misleading.  The theory has been successful in cases involving meat products, for example where the U.S. Department of Agriculture preapproved certain labels that included the language, “100 percent natural.”  See, e.g., Barnes v. Campbell Soup Co., No. 12-cv-05185 (N.D. Cal. July 25, 2013).  Separately, many defendants argue that the FDA has primary jurisdiction over these cases, and the success of that argument has been inconsistent.  Some courts have held that the doctrine, which applies where an administrative agency with relevant expertise can resolve an issue, is inapplicable.  Others have stayed this type of litigation pending the FDA’s action on this issue.

With “all natural” litigation producing inconsistent results, a trend attacking labeling of food products as “raw” appears to be developing.  In October 2013, Hain Celestial Group Inc. was sued in a putative class action in federal court in New York, alleging that the company had deceived them into paying premium prices for “100% raw” and “unpasteurized” juice, which allegedly was neither raw nor unpasteurized.  Similarly, recently, Suja Life LLC was sued in a putative class action in federal court in California, alleging that the company dupes consumers into paying premium prices for its products by labeling them as “raw,” although the products allegedly are subjected to processing that strips them of certain nutrients.

Presumably, these cases will be faced with the same issues and defenses raised in the “all natural” litigation, and whether this new theory has more traction remains to be seen.