Both myself and my colleague Isabella Lacayo have been tracking product labeling and advertising litigation in the food and beverage industry over the past few months. As Isabella reported a few weeks ago, Kraft Foods has recently been hit with two multi-count putative consumer class actions in Florida, both of which allege that Oscar Mayer’s meat products’ labels are deceptive as to fat content. And as I reported a few months ago, Galeos has been hit with several class actions for allegedly misleading consumers about their salad dressings’ fat content, calories, and sodium content per serving. Other posts about the rise of litigation in the food and beverage industry can be found here and here.
Nestle SA subsidiary Dreyer’s Grand Ice Cream Inc. (“Dreyer’s) is the most recent company to be hit with a class action alleging that a food product was labeled in a misleading fashion. Plaintiff Skye Astiana filed a putative class action in the U.S. District Court for the Northern District of California on Wednesday, alleging that Dreyer’s labeled and marketed their ice cream products as being “All Natural” when, in fact, they contain alkalized cocoa, which is processed with potassium carbonate, a synthetic ingredient. Astiana’s complaintalleges that Dreyer’s ice cream products’ labels prominently display the catch-phrase “All Natural,” “cultivating a wholesome and healthful image in an effort to promote the sale of those products.” Astiana further alleges that she, like the other members of the class, is health-conscious and purchased Dreyer’s ice cream products based on their labels’ representation that they were all-natural; she further alleges that she relied on the fact that these products were labeled as “all-natural” when purchasing them as opposed to purchasing lower-priced, non-natural ice cream products. Finally, she alleges that Dreyer’s use of the synthetic ingredient potassium carbonate to process the alkalized cocoa contained in its ice cream products makes those end products “unnatural” under the FDA guidelines. Astiana’s complaint alleges causes of action for common law fraud, false advertising in violation of the California Business & Professions Code, “unlawful”, “unfair”, and “fraudulent” business practices in violation of California Unfair Competition Law, violation of the California Consumers Legal Remedies Act, and restitution/unjust enrichment.
This is not the first product labeling suit brought by Ms. Astiana against a major food manufacturer – she filed suit against Ben & Jerry’s Homemade Inc., also in the U.S. District Court for the Northern District of California, back in September 2010. That complaint alleged similar misleading labeling and marketing claims, also based on Ben & Jerry’s use of alkalized cocoa processed with potassium carbonate. Ben & Jerry’s motion to dismiss was denied last month.
As this blog has previously noted, class actions targeting food products marketed with nutritional and health claims are on the rise, and these cases are likely to impact how companies label and advertise their “healthy”, “low-fat,” “fat-free,” and “all-natural” food products. We will continue to monitor all of these cases and provide updates on any notable developments.