Academic journal article The Review of Litigation

Tracing the Evolution of Food Fraud Litigation: Adopting an Ascertainability Standard That Is "Natural"

Academic journal article The Review of Litigation

Tracing the Evolution of Food Fraud Litigation: Adopting an Ascertainability Standard That Is "Natural"

Article excerpt

I. Introduction 609 .....................

II. FDA's Current Regulation of Food Claims and the "First Wave" of Litigation .....................613

A. Introduction: Prohibition of Misbranded Food .....................613

B. The Nutrition Labeling and Education Act .....................615

C. The FDA 's "All Natural '' Saga .....................616

D. The "First Wave " of Litigation: Preemption Issues..................... 619

III. Class Actions and Their Purpose in Small Consumer Claims .....................621

A. Rule 23 's Class Certification Requirements .....................621

B. The Purpose of Class Certification: Allowing Smaller Consumer Claims .....................623

IV. The Ascertainability Requirement: An Analysis of Courts' Interpretations .....................624

A. The Rationale Behind the Ascertainability Requirement .....................625

B. Problems with a Stringent Ascertainability Standard.... 633

V. Adopting an Ascertainability Requirement that Preserves Consumer Class Actions .....................636

VI. Conclusion .....................639

I INTRODUCTION

"Hazed & Confused," "Peanut Butter Fudge," "Salted Caramel," and "That's My Jam" are the new "core" ice cream flavors that have recently garnered media attention for Ben & Jerry's. But, this new line of ice cream flavors is not the only thing bringing Ben & Jerry's media attention. Not long ago, Ben & Jerry's was undoubtedly "Hazed & Confused" itself when it was slapped with a lawsuit for its use of the word "natural" to describe its ice cream. Plaintiffs in a putative class action lawsuit alleged that they had been duped into thinking the products were "natural" when, in reality, the products contained "Dutch" cocoa, an ingredient the plaintiffs claimed was "synthetic" and "man-made."1 The company ended up settling the claim for $5 million.2 Ben & Jerry's is not alone in its recent legal plight over the use of the word "natural;" other companies have settled similar claims-including, Barbara's Bakery ($4 million), Cargill ($5 million), PepsiCo ($9 million), and Trader Joe's ($3.4 million).3

The Ben & Jerry's suit is representative of a new trend in food litigation in which plaintiffs bring consumer class actions against food manufacturers for falsely representing that their products are "natural," "all natural" or "100% natural" (among other representations), claiming violations of state consumer fraud statutes.4 The Food and Drug Administration's (FDA) refusal to define the term "natural" is one of the primary causes of the uptick in litigation.* * * * 5 The FDA has only provided informal, non-binding guidance on the use of "natural"-leaving the landscape ripe for lawsuits. Plaintiffs allege that large food companies misuse the term to misrepresent their products as "all natural" when they are not.6

This influx of lawsuits against large food manufacturers has come in waves.7 During the "first wave" of food-fraud litigation, defendants-for the most part unsuccessfully-argued that the plaintiffs' state law consumer claims were preempted by the Federal Drug and Cosmetics Act (the federal statute governing food labeling).8 Indeed, much of the scholarship on food-fraud litigation has focused exclusively on issues of preemption,9 and many scholars have called upon the FDA to provide a formal and binding definition of "natural."1®

Recently, however, food-fraud litigation has gone in a different direction. Increasingly, defendants are challenging plaintiffs' class certification.11 Because some defendants have been successful in defeating class certifications, challenging class certifications may be the potential "silver bullet" for large food companies defending these lawsuits.12 Of particular interest to defense attorneys and scholars alike is the "ascertainability" requirement for class certification that courts have found implicit in Federal Rule of Civil Procedure 23. …

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