In two similar cases filed in California, plaintiffs Gabriel Rojas and Sean Bohac argued that the ‘100% Natural’ description is deceptive and misleading because the products contain ingredients from genetically engineered soy and corn.
In a third case backed by the Center for Science in the Public Interest (CSPI), plaintiff Judith Janney et al argued that the natural claims were deceptive because the products contained highly processed ingredients such as high fructose corn syrup, maltodextrin, and high maltose corn syrup.
What a ‘reasonable consumer’ thinks does not involve answering technical questions or scientific expertise
General Mills had sought to dismiss or/and stay the lawsuits on primary jurisdiction grounds, arguing that the FDA should determine the ‘natural’ issue once and for all and stop such cases clogging up the courts.
This argument has gained some credence recently after judges handling three similar cases (Cox v Gruma Corp; Van Atta v Gen Mills; Barnes v Campbell Soup) agreed to stay proceedings on primary jurisdiction grounds to give the FDA time to make a determination on ‘all-natural’ claims and GMOs specifically.
Judge: No one knows how the FDA will respond, if it responds at all
However, most judges handling all-natural cases disagree with this approach, insisted US district judge William H Orrick in October 10 orders denying General Mills’ request for a three-month stay in the Bohac v Gen Mills and Janney v Gen Mills cases.
He added: “A stay... is more likely to delay justice, slow the resolution of the matter, and make this litigation more expensive in the long run. No one knows how the FDA will respond, if it responds at all.”
Finally, in his October 9 order on the Rojas v General Mills case, Orrick said the courts were in any case capable of judging this issue: “This case primarily requires asking whether a ‘reasonable consumer’ would be misled by the challenged statements. What a ‘reasonable consumer’ thinks does not involve answering technical questions or scientific expertise."
This is not a particularly complicated issue inappropriate for a court to address
He granted in part and denied in part General Mills’ motion to dismiss the case, rejecting (with leave to amend) most of the plaintiff’s allegations of breaches of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act except with regard to claims about Nature Valley Oats and Honey and Dark Chocolate Peanut Butter crunchy granola bars “to the extent that any alleged misrepresentation is based on their wrappers and containers”.
The cases are: Gabriel Rojas et al v. General Mills 4:12-cv-05099; Sean Bohac v. General Mills 3:12-cv-05280; and Judith Janney, et al. v. General Mills 4:12-cv-03919.
Click here to read our interview with Pierce Gore, a leading plaintiff's attorney targeting large food companies with proposed class action lawsuits over product labels.