Attorney on ‘all-natural’ lawsuit vs Monster Bev Corp: 'I think most people would look at this and think it’s getting crazy'

13-Dec-2012 - Last updated on 13-Dec-2012 at 16:14 GMT

A lawsuit alleging that Hansen’s Diet Sodas with ‘all natural flavors’ are misbranded because they contain artificial sweeteners, highlights the lengths to which opportunistic plaintiffs’ attorneys are now going to try and cash in on the legal ambiguity surrounding the word ‘natural’, argue experts.

In a complaint filed in California last month vs Monster Beverage Corporation, Hansen Natural Corporation and Hansen Beverage Company, plaintiff Steven Viggiano claimed that a reasonable consumer would interpret the phrase ‘all-natural flavors’ to mean that all ingredients which affect the flavor of the product - including sweeteners - must also be natural.

He added: “The inclusion of sweeteners, the type of sweeteners, the quantity of the sweeteners, the nature of sweeteners, have an impact on a soda’s flavor."

And as the Hansen sodas contain artificial sweeteners sucralose and ace-K, which he describes as “flavor-related ingredients”, they are therefore misbranded, he said.

Plaintiff: The term ‘all-natural flavors’ refers to all ingredients that affect the flavor

all-natural-campbell — Because there is no legal definition of ‘natural’, complaints are not susceptible to dismissal based on pre-emption, making them harder to defend, say lawyers

Viggiano, who filed his suit on behalf of consumers nationwide that have purchased Hansen's Diet Premium Soda with All Natural Flavors in the past four years, alleged:

“A reasonable consumer would understand the term ‘All Natural Flavors’ to mean that the word flavors … refers to all ingredients that affect the flavor - the entire mix of ingredients that give a product its flavor, that the whole extent or quantity of the flavors in the sodas are produced or existing in nature; not artificial or manufactured, and that none of the ingredients related to the flavor of the product are synthetic, not natural, or artificial.”

Prochnow: This is not the first time a plaintiff’s attorney has attempted to put a square peg in a round hole…

SoBe-lifewater — Federal judge John F Walter granted South Beach Beverage Co’s motion to dismiss an ‘all-natural’ complaint in May, adding: “No reasonable consumer would read the ‘all natural’ language as modifying the ‘with vitamins’ language and believe that the added vitamins are supposed to be ‘all natural vitamins’.”

Commenting on the case, Justin Prochnow, an attorney based in the Denver office of law firm Greenberg Traurig, told FoodNavigator-USA that “this is not the first time a plaintiff’s attorney has attempted to put a square peg in a round hole”.

But he added: “I would be very surprised if this has legs. Maybe they are just hoping that as Monster has so many legal issues to deal with right now, it will just want to settle and get rid of this, but I think most people would look at this and think it’s getting crazy.

“There is a cottage industry now around these [all-natural] claims; everybody is trying it on because it is such a lucrative business model.”

Nevertheless, the chances of success for this particular case appear slim, he suggested:

“This cases smacks of the SoBe case dismissed earlier this summer when the plaintiff argued that “All Natural with Added Vitamins” [on PepsiCo’s SoBe Lifewater products] meant “All Natural” with “All Natural Vitamin” and the judge stated that no reasonable person would interpret it in that way.”

Dance: I don’t think this complaint is any more frivolous than lots of others

William Dance, an LA-based attorney at law firm Tucker Ellis LLP, said he didn’t think the complaint was “any more frivolous than lots of others”, but noted that “most of the ‘natural’ labeling lawsuits I see seem designed to elicit quick strike-suit type settlements for plaintiff’s counsel, as opposed to bringing to light issues of widespread consumer confusion.”

He said: “Plaintiff alleges that Hansen labels the products as ‘Premium Diet Soda made with all natural flavors’. One ambiguity of this language is that Hansen could mean the soda is made with certain flavors that are all-natural and others that are not, or it could mean that the product is made with flavors, all of which are natural.”

The plaintiff interprets it as the latter, he said, “but the company can argue that it means the former, and that sucralose is one of the flavors that is not all-natural.”

Viggiano also claims that the term ‘premium’ is misleading because it is predicated on the ‘made with all natural flavor’ label claim, he observed.

“It is not clear at all that the company intends a connection between the premium label and the flavorings, so this portion of his claim seems quite tenuous.”

Wasserman: Complaint shows the care and consideration that must be taken when crafting labeling and advertising claims

Ivan Wasserman, a Washington DC-based attorney at law firm Manatt, Phelps & Phillips, said bizarre though the complaint might appear at first glance, it "shows the care and consideration that must be taken when crafting labeling and advertising claims, especially in the 'natural' space".

He added: "The plaintiffs appear to be trying to argue that a claim that is both literally true and permitted under FDA regulations creates a misleading implication in the context in which it appears.

"Class actions and FTC investigations based on alleged implied claims often take companies by surprise because they never thought they were making a claim that they are now being forced to defend.

"Whether there is actual consumer deception in this case obviously remains to be seen."