Monthly Archives: September 2013

Judge Dismisses “Ridiculous” Real Fruit Claims Against Nabisco

Last week, U.S. District Court Judge William Alsup dismissed with prejudice a putative class action complaint against Mondeléz International Inc., d/b/a Nabisco.   The Complaint alleged that the plaintiff  purchased strawberry and raspberry Newton cookies and relied on the labeling and advertising displayed on the front packaging, namely that the products were “made with real fruit.”  Plaintiff alleged that she interpreted the statement “made with real fruit” to mean that the products “contain[ed] real fruit — not merely mechanically processed fruit purée, which is not ‘real fruit.’ ”  As always, the Complaint further alleged that the plaintiff was economically damaged because she either would not have purchased, or would not have paid a “premium price” had she known it  contained processed fruit purée rather than “real fruit.”

The Court dismissed the plaintiff’s claims pursuant to Fed.R.Civ.P. 12(b)(6):

Plaintiff has not plausibly alleged why the statement “made with real fruit” would not include mechanically separated fruit purée.   This order agrees with the numerous decisions that have dismissed similar food labeling claims at the pleading stage.  Where, for example, a plaintiff challenged the use of the word “apple” in the name of an Apple Straws product that contained puréed apples and “veggies” in a product made  primarily of potatoes, the claim was rejected.  ****

[In sum], [t]he complaint has  failed to allege why real strawberries and raspberries in their puréed form are no longer “real  fruit.”   It is ridiculous to say that consumers would expect snack food “made with real fruit” to  contain only “actual strawberries or raspberries,” rather than these fruits in a form amenable to being squeezed inside a Newton.

Please see the entire ruling here.


Two Courts Reject Primary Jurisdiction Argument for “All Natural” Claims

I have previously written about a court staying a class action suit targeting “all natural” claims on Mission tortilla chips based on the principle of primary jurisdiction. See here and here.  In a nutshell, the court ruled that it should defer to the FDA based on the FDA’s “unique expertise and resources suited to resolving the issues presented by Plaintiff’s claims.”  In this regard, the Court noted “a gaping hole in the current regulatory landscape for ‘natural’ claims and GMOs” and that “there is no direct regulation by the FDA of the term ‘natural,’ nor any requirement that a company disclose on a food product’s label whether it contains GMOs.”  In July 2013, a court in Colorado issued a similar ruling in a case against General Mills.  This raised the specter that subsequent courts might follow suit.

Two recent cases, however, have turned the tide in the opposite direction.  In Parker v. J.M. Smucker Co., 3:13-cv-00690 (N.D. Cal.) , the plaintiff again alleges that certain products (in this case various Crisco brand oils) labeled as “All Natural” are not “natural” because they are made with genetically modified crops.  In rejecting the defendant’s motion to dismiss based on the primary jurisdiction doctrine, the court held as follows:

The Court does not find that primary jurisdiction is appropriate here.  As noted above and in other cases, various parties have repeatedly asked the FDA to rule on “natural” labeling, and the FDA has declined to do so because of its limited resources and preference to focus on other priorities. ….  Even if the Court found that the primary jurisdiction doctrine applied to this case, referring the matter to the FDA would do little more than protract matters.

The court thus recognized what many FDA observers believe — that the FDA has no desire or intent to craft a definition of “all natural” that includes a statement on the status of GMO crops.  Please see the full ruling here.


A U.S. District Court judge in the Eastern District of New York used slightly different logic to reject the defendants’ primary jurisdiction argument in the multi-district class action targeting Frito-Lay for “all natural” claims on products that allegedly include GMO ingredients).  In that case, the judge observed that the  primary jurisdiction doctrine does not apply when “the issue at stake is legal in nature and lies within the traditional realm of judicial competence.”  And in reviewing the relevant claims, the Court found that “[t]his case is far less about science than it is about whether a label is misleading, and the reasonable-consumer inquiry upon which some of the claims in this case depends is one to which courts are eminently well suited, even well versed.”  Significantly, the Court also noted as follows:

[E]ven if the FDA were to formally define the term “natural,” it would not dispose of plaintiffs’ state law claims.  There is no telling, if it even chose to respond with any directive to the Court’s referral, how the FDA would define the term, and whether its definition would shed any further light on whether a reasonable consumer is deceived by the “All Natural” food label when it contains bioengineered ingredients.  Furthermore, numerous district courts have declined to invoke primary jurisdiction in state-law consumer protection cases so that the FDA may pass on whether a food may properly be labeled “natural.”

The two recent cases that accepted the primary jurisdiction argument did not sway the court.  “This Court does not find persuasive the reasons for invoking primary jurisdiction in those cases; the issues of fact in this case are, in fact, ‘within the conventional experience of judges …. and, undertaking the decision- making in this case would not “risk usurping the FDA’s interpretive authority” or undermine its “considered judgments.”  The court concluded with the prudential observation that “the FDA is unlikely to respond in a timely manner to any referral from this Court.”  Please see the complete ruling here.