On Tuesday, January 7, 2014 a California court rejected a motion for class certification in Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387, 2014 WL 60097 (N.D. Cal. Jan. 7, 2014), primarily on grounds that the proposed class was insufficiently ascertainable and common questions did not predominate over individual issues. The plaintiff, Skye Astiana, had filed a putative class action on behalf of purchasers of any Ben & Jerry’s product that contained alkalized cocoa and was also labeled “all natural.” Ms. Astiana alleged the “all natural” label was misleading to the extent that the cocoa was alkalized with a synthetic agent. 

The court found that the class was not sufficiently ascertainable because Ben & Jerry’s used several alkalis—some of which were synthetic and some of which were natural—and the plaintiffs had not identified a method for determining which class members bought ice cream manufactured with synthetic alkalis. Ben & Jerry’s suppliers could not determine which shipments of cocoa they supplied to Ben & Jerry’s were alkalized with synthetic substances. Moreover, Ben & Jerry’s is a wholesaler and did not have records of the specific products purchased by consumers. Because the plaintiffs could not overcome these facts to identify a method of determining who belonged in the class, the court ruled that the class was not ascertainable. 

The court also ruled that common questions did not predominate because the plaintiffs failed to offer a model capable of measuring damages across the entire class. The plaintiffs argued that a damages model was not necessary and damages could be calculated based on Ben & Jerry’s profits from the ice cream with synthetic alkalis. The defendants countered with expert testimony demonstrating that Ben & Jerry’s wholesale customers did not pay more for ice cream labeled “all natural” than it did for ice cream without such a label. The court concluded that the plaintiffs were required to introduce evidence that customers paid a premium for “all natural” ice cream because the plaintiffs are required to tie their damages to the allegedly unlawful practice. Because the plaintiffs could not show that customers paid more for ice cream based on the allegedly false statement that it was “all natural,” the plaintiffs could not measure damages and common questions did not predominate. 

While the plaintiffs generally have been successful in defeating motions to dismiss food labeling class actions, they are met with more mixed results at the summary judgment and class certification stages.  The Ben & Jerry’s decision is in line with decisions from other jurisdictions denying certification of food labeling claims, including a decision from the Third Circuit that also denied certification on ascertainability grounds.^[1]  Given this trend, businesses should consider incurring the costs of discovery and challenging the plaintiffs’ attempt to certify a class in food labeling class actions.  Many of these cases involve low-cost products for which customers are unlikely to retain proof of their purchases and defendants will therefore have a strong argument that class members cannot be identified and a class should not be certified. 

_{[1] Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir. 2013) (denying certification on ascertainability grounds); McManus v. Sturm Foods, Inc., 292 F.R.D. 606, 620 (S.D. Ill. 2013) (denying certification on predominance and ascertainability grounds); Ries v. Arizona Beverages USA, LLC, No. 10-1139, 2013 U.S. Dist. LEXIS 46013 (N.D. Cal. Mar. 28, 2013) (denying certification primarily because plaintiffs failed to rebut defendant’s expert testimony); Red v. Kraft Foods, Inc., No. 10-1028, 2012 U.S. Dist. LEXIS 164461 (N.D. Cal. Oct. 25, 2012) (denying certification on ascertainability grounds); but see Thurston v. Bear Naked, Inc., No. 11-2890, 2013 U.S. Dist. LEXIS 151490 (S.D. Cal. July 30, 2013) (Huff, J.) (certifying class and rejecting ascertainability and damages arguments); Astiana v. Kashi Co., 291 F.R.D. 493, 500 (S.D. Cal. 2013) (Huff, J.) (denying certification in opinion nearly identical toThurston).}