Does the AriZona Iced Tea ruling set an important precedent in all-natural lawsuits?
In his 13-page judgment - which you can read more about here - US District Judge Richard Seeborg said the plaintiffs had failed to provide any evidence - compelling or otherwise - that beverages containing high fructose corn syrup (HFCS) and citric acid should not be described as ‘natural’.
His ruling has encouraged many firms hit with similar lawsuits, while several food law attorneys contacted by FoodNavigator-USA believe it sets a new precedent in these cases.
William Dance: The substantive impact of the decision on other cases involving similar claims will probably be quite limited
However, not all of them reckon it's time for food marketers to crack open the champagne just yet.
William Dance, LA-based attorney at law firm Tucker Ellis LLP, pointed out that owing to the plaintiffs' failure to come up with experts who could create an issue of fact as to whether HFCS and/or citric acid are natural by the deadline set by the court, Seeborg had to refuse to reopen discovery.
As a result, he was not even required to address the core issue of whether HFCS et al are natural.
"Because the court never reached the core issue whether HFCS and/or citric acid are natural, the substantive impact of the decision on other cases involving similar claims will probably be quite limited", Dance told FoodNavigator-USA.
The substantive impact of the decision on other cases involving similar claims will probably be quite limited
Meanwhile, although it was good news for the defendants that Seeborg rejected the plaintiffs' argument that patented ingredients can't be natural, this was not in fact an argument typically employed in 'all-natural' lawsuits, said Dance. "So the court’s rejection of it is not broadly significant".
On the plus side, said Dance, Seeborg did note the "difficulty that plaintiffs in these cases face in producing facts sufficient to show a likelihood of deception under the reasonable consumer standard that governs unfair competition law, California's Consumers Legal Remedies Act, and false advertising law claims brought under California law".
He also focused on plaintiffs’ inability to present evidence establishing the difference between the value of AriZona Iced Tea billed as 'all-natural' and that of a comparable beverage not marketed or sold at a premium due to such claims, said Dance.
"The court’s discussion of both these issues illustrates ways that a defendant can successfully challenge the viability of plaintiffs’ claims even in a case where, as here, the class has already been certified.
"And that alone makes the result a positive one for a wide range of defendants in California food labeling litigation, not just those dealing with challenges to natural ingredient labeling."
Anthony Pavel: Sometimes it's worth pressing the issue
Anthony Pavel, a partner at law firm Morgan Lewis, agreed that the ruling was probably not a game changer as the core issue of what is - or isn't - 'natural' was not actually addressed by the court owing to the plaintiffs' failure to present any evidence.
But it did show that in these cases, it can be "worth pressing the issue" instead of just "settling to make the plaintiffs go away", he said.
Rebekah Kaufman: The decision shows real skepticism towards these types of lawsuits
Other attorneys felt that the ruling - and the tone in which is was delivered - set an important new precedent, however.
Rebekah Kaufman, a partner at Morrison & Foerster LLP, said Seeborg's comments reflected growing skepticism about lawsuits over ‘natural’ claims, scores of which have been filed in recent years as opportunistic plaintiffs’ attorneys seeks to capitalize on the legal uncertainty surrounding the definition of ‘natural’.
And while Seeborg devoted much of his ruling to criticizing the way the plaintiffs’ counsel had prosecuted the case, it was not just about poor legal representation, she added.
“This is about much more than the plaintiffs’ failure to prosecute their case and come forward with scientific evidence showing the iced tea is not ‘all natural’.
“The decision shows real skepticism towards these types of lawsuits, which is a trend we’ve started to see in some of these lawsuits where courts are requiring plaintiffs, even at the pleading stage, to come forward with more than just junk science in support of their attack on ‘all natural’ claims.
Rebecca Cross: Ruling sets a great precedent for pending ‘natural’ litigations
Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, agreed that Seeborg’s ruling set a “great precedent for pending ‘natural’ litigations”.
She added: “The HFCS cases were the first of the ‘natural’ litigations, and they were allowed to continue because courts held that the FDA’s guidance on ‘natural’ did not have enough weight to preempt consumer claims.
“Those decisions led to the proliferation of natural claims [lawsuits] we see today, which allege that ‘natural’ means no synthetic ingredients, not overly processed, or even free of genetically modified ingredients.”
Decision places onus on plaintiffs to establish their allegation that a product is not ‘natural’
Owing to the cost and hassle of defending these cases, many have been settled before reaching summary judgment, she added.
However, Seeborg’s decision could change all that, she predicted.
“This decision is significant because it says that plaintiffs have the burden to establish their claim that a product is not ‘natural’.
“The court found that plaintiffs had not introduced any such evidence. It also disregarded plaintiff’s contention that an ingredient is artificial if the process to produce it is patented, saying they had no legal authority for that argument.
“It also dismissed plaintiff’s argument that Arizona’s statements may mislead some consumers, saying the relevant standard is whether ‘it is probable that a significant portion of the consuming public could be confused’."
(Seeborg noted that the plaintiffs had failed to provide a consumer survey or other evidence to prove that the challenged statements misled consumers.)
Prochnow: Plaintiffs must prove their case, not just make bald assertions and then hope a court will rule in their favor
Commenting on the case for FoodNavigator-USA last week, Justin Prochnow, an attorney in the Denver office of law firm Greenberg Traurig, said: “The judge basically said that just because something is processed, doesn’t mean it isn’t ‘natural’…
“This case… reinforces the principle that plaintiffs must prove their case, not just make bald assertions and then hope a court will rule in their favor.”
What did the plaintiffs allege?
The complaint, filed on behalf of lead plaintiffs Lauren Ries and Serena Algozer in March 2010, alleged that consumers were being misled by claims that AriZona Iced Tea is ‘All Natural’ given that it contains HFCS and citric acid.
HFCS, “which is produced by adding a series of enzymes to processed corn starch to change the glucose present in the corn into fructose, is not a natural product”, claimed Ries and Algozer.
Meanwhile, citric acid is “man-made because it is produced from certain strains of the mold Aspergillus niger”.
The plaintiffs sought certification of a class consisting of everyone in California who purchased an Arizona brand beverage which contained HFCS or citric acid … that was advertised or labeled as ‘All Natural,’ or ‘100% Natural’ from March 17, 2006.
Click here to read our coverage of the case last week, which features more analysis from Justin Prochnow.
