"Natural" Labeling

FDA has generally refused to define what is a "natural" food or a "natural food ingredient," leaving it to juries to sort out. One jury might find that adding some ingredient to food makes it "not natural" while another jury (even in the same city) could find the same ingredient in a food is "natural." Our client, an east coast food company, received a demand letter from a law firm threatening a class action based on the company's labeling a food "natural" while it contained ingredients that a jury might not agree were natural.

When a class action case is filed, it is not a class action. It starts off as one plaintiff asking a court to rule that he or she is the representative of thousands of consumers who have all been harmed in the same way. For a court to rule that the single plaintiff represents a "class" of thousands of identically harmed people, the plaintiff must identify who those thousands of people are and how they were all identically harmed. The perfect "class" is people who own 2011 Toyota Camrys with defective brakes: They are all in the same situation - - they want to stop. It's easy to find all of the members of the class -- -- they are driving 2011 Camrys.

In our client's food case, The Food Lawyers® observed that in addition to "natural" on the company's packaging, it also said the products were "kosher," "sugar free," "gluten free," "vegan," "high in fiber," and had fewer than some number of calories (all of which was true). We contacted plaintiff's attorneys before they filed their lawsuit and told them we would challenge their ability to define their class because they could never sort out which consumers cared about which product attribute. For example, some members of their class who had celiac disease need to eat gluten free food and their purchasing decision might not be influenced by whether the food contains some ingredient that might not be "natural." If the person has diabetes and needs to eat sugar free food and has celiac disease, the problem becomes even more complex. Add in that some might be vegans or keeping Kosher- - the combinations are endless and the class was a "mishmash" of different persons with different interests that a court cannot untangle. If the plaintiff cannot define the members of the class, the plaintiff loses. We also raised other problems with plaintiff's case.

The plaintiff's attorneys settled the case for an amount that was less than the cost of us defending it for two months. The client was happy and relieved.


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