Given the slew of recent false advertising claims filed in California federal court challenging the use of “All Natural” on food labeling, it was only a matter of time before judges started deciding related legal issues and providing guidance on dos, don’ts and maybes.
Two recent cases, Hairston v. South Beach Beverage Co. and Astiana v. Dreyer’s Grand Ice Cream, Inc., both involving “All Natural” claims but producing very different results, have inched this process forward. This is the first of a multipart blog which will review these recent decisions and their implications for food and beverage manufacturers facing false advertising class actions in federal court.
The South Beach case involved SoBe’s Lifewater product, a no-calorie, vitamin-enhanced flavored water drink. The plaintiff claimed the use of an “all natural” label on the product was deceptive because Lifewater contains ingredients that are “synthetic or created via chemical processing,” including ascorbic acid, cyanocobalamin, calcium pantothenate, niacinamide, pyrioxine hydrochloride, and xanthan gum. The first five ingredients are forms of Vitamins C, B12, B5, B3, and B6, and xanthan gum is a thickening agent derived from natural bacterium.
The plaintiff also alleged that Lifewater’s labels are misleading because fruit names are used to describe Lifewater flavors even though Lifewater does not contain any actual fruit or fruit juice, and such names likely to deceive consumers into believing that the beverages are “All Natural.”
Finally, the plaintiff claimed that the use of the common vitamin name (for example, B12) on the product labels is misleading because the vitamins added to Lifewater are synthetic or created via chemical processing.
On South Beach’s motion to dismiss, the court first dismissed the plaintiff’s challenge to the use of fruit names to describe Lifewater flavors on the “preemption” grounds — namely, that FDA regulations explicitly permit manufacturers to use the name and images of a fruit on a product’s packaging to describe the characterizing flavor of the product even where the product does not contain any of that fruit, or contains no fruit at all. The court did the same with regard to the vitamin name claim, noting that federal regulations recognize that, for example, “vitamin C” and “ascorbic acid” are synonyms and may be used in the alternative.
When the plaintiff argued that he included his fruit and vitamin name claims only to support his “all natural” claim, the court rebuffed him, reasoning that argument would allow plaintiff to undermine the purpose of the federal labeling standards — which includes avoiding a patchwork of different state standards.
The court also dismissed the plaintiff’s “All Natural” claims, reasoning that once the preempted statements regarding fruit and vitamin name labeling are removed, Plaintiff’s claim is based on a single out-of-context phrase found in one component of Lifewater’s label. Viewed in context, the court noted, “the ‘all natural’ language is immediately followed by the additional statement ‘with vitamins’ or ‘with B vitamins, and it will be impossible for Plaintiff to allege how the ‘all natural’ language is deceptive without relying on the preempted statements regarding fruit names and vitamins.”
The court noted that any ambiguity is clarified by the detailed information contained in the ingredient list, which explains the exact contents of Lifewater drinks. The court further noted that the ingredient list is consistent with the front label statement of “all natural with vitamins,” with the statement “nutrient enhanced hydration beverage,” with the fact that Lifewater is a flavored water beverage and not a juice, and with the product name “0 Calorie Lifewater.”
What does South Beach teach manufacturers about the use of “All Natural” on labeling? First, a label that contains the words “All Natural” is not automatically deceptive because the product contains ingredients that are synthetic or processed. Second, plaintiffs cannot support their claim that “All Natural” is misleading by relying on other label statements that are permitted under FDA regulations. Third, “All Natural”, as used on the label, must be viewed in context and cannot be viewed in isolation — neighboring words, phrases and the more detailed ingredient list may be considered.
In my next post, I will review Astiana v. Dreyer’s Grand Ice Cream, Inc., which also involved “All Natural” claims, but which came to the opposite result. The two cases, emanating from the same court, are not easily reconciled, and foreshadow choppy seas for food and beverage manufacturers defending false advertising claims in federal court in California.