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near future, it would be a waste of time to stay
or dismiss “natural” lawsuits and wait for FDA
to provide a definition.
See, e.g., In re Frito-Lay
N. Am.
, 2013 WL 4647512;
In re ConAgra Foods,
Inc.
, No. 2:11-cv-5379, 2013 WL 4259467 (C.D.
Cal. Aug. 12, 2013).
On January 6, 2014, however, FDA made it
clear that it would not take any further actions
to define the term “natural” at this time. In
response to the referrals from the district
judges in
Cox, Barnes
and
In re General Mills,
Inc. Kix Cereal Litigation
, No. 12-00249 (D.N.J.),
FDA “respectfully declined” to make a deter-
mination at this time regarding whether and
under what circumstances food products
may be labeled “natural.” This latest action by
FDA effectively will end the stays and also the
notion that FDA has “unintentionally” failed to
define“natural.” Given this latest development,
it remains to be seen whether courts will give
any deference to FDA on primary jurisdiction
grounds to allow FDA to define “natural,” but
the likelihood of this certainly has been dimin-
ished.
Failure to State a Claim
There has been some success in obtaining
dismissal of these lawsuits for failure to state
a claim, but usually only when it is obvious
that the product would not contain entirely
“natural” ingredients or when a plaintiff has
not relied on the “natural” label. For example,
in
Pelayo v. NestleUSA, Inc.
, the Central District
of California held that the term “All Natural”
as used on Buitoni Pasta packaging was not
deceptive as a matter of law because no rea-
sonable consumer would believe that such
pasta came “springing fully-formed from Ravi-
oli trees and Tortellini bushes.” No. 2:13-cv-
05213-JFW-AJW, 2013 WL 5764644, at *4 (C.D.
Cal. Oct. 25, 2013). Similarly, in
Kane v. Cho-
bani, Inc.
, the court reasoned that because the
labels clearly disclosed the presence of unnat-
ural ingredients in the yogurt, it was not plau-
sible for plaintiffs to believe that such yogurts
only contained “natural ingredients.” No. 5:12-
cv-2425, 2013 WL 5289253, at *10 (N.D. Cal.
Sept. 19, 2013). Regarding reliance, the court
in
Maple v. Costco Wholesale Corp.
found that a
plaintiff could not state a claim when he had
not read the label. No. 2:12-cv-5166, 2013 WL
5885389 (E.D. Wash. Nov. 1, 2013). Courts that
have found that plaintiffs have stated claims
have held that whether a reasonable con-
sumer would be deceived by “natural”labeling
is a question of fact that cannot be resolved
at the motion to dismiss stage.
See, e.g., In
re Frito-Lay N. Am.
, 2013 WL 4647512;
Parker
,
2013 WL 4516156.
Conclusion
Going forward, it is unlikely that courts will
dismiss such lawsuits under the primary juris-
diction doctrine given FDA’s refusal to define
“natural” in response to
Cox
. Furthermore,
preemption defenses have only been suc-
cessful in limited situations where USDA, and
not FDA, regulates the labeling claim (e.g., for
meat). Thus, a successful, early defensemay be
limited to lawsuits where products are obvi-
ously not “natural” or where plaintiffs admit
that they did not read the “natural” label at the
time of purchase. Such cases, however, will
likely be infrequent since plaintiff attorneys
are becoming more sophisticated and are
now attuned to the problem posed by believ-
ing in Ravioli trees and Tortellini bushes. Thus,
until FDA promulgates a formal definition of
“natural,” the rush of these types of consumer
fraud class actions likely will continue.
n
