Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Dole “All Natural Fruit” misrepresentation claims “pulped”, (Dec 10, 2014)

By Greg Hammond, J.D.

Dole Packaged Foods, LLC, a leading producer of fresh fruit and vegetable products, has successfully fended off claims that its products contained the false and misleading statement, “All Natural Fruit.” In granting summary judgment against a consumer’s false advertising and unfair competition claims, the federal district court in San Jose determined that the proposed class representative failed to present evidence that the “All Natural Fruit” label statement was likely to mislead reasonable consumers (Brazil v. Dole Packaged Foods, LLC, December 8, 2014, Koh, L.).

Background. Chad Brazil filed a class action against Dole, alleging that he spent over $25.00 on Dole’s misbranded food products. He argued that he purchased various mixed fruit and fruit juice products from Dole that contained the statement “All Natural Fruit” on their label. The representation is purportedly: (1) misleading, because the products contain the synthetic ingredients ascorbic acid and citric acid; and (2) unlawful, because California’s Sherman Food, Drug, and Cosmetic Act, which has expressly adopted the labeling requirements of the federal Food, Drug, and Cosmetic Act, expressly prohibits false and misleading food labeling and advertising. Consequently, Brazil brought claims under California’s Unfair Competition Law (UCL), False Advertising Law, and Consumers Legal Remedies Act. Dole moved for summary judgment and to strike certain expert declarations.

In support of its motion for summary judgment, Dole argued that there was (1) no evidence that the challenged products were anything but “natural”; (2) no evidence that there was class-wide deception, because Brazil failed to show that reasonable consumers would likely have been misled by the “All Natural Fruit” label; (3) no evidence that reasonable consumers would consider the representation material to their purchasing decision; (4) no evidence Dole violated any underlying law; and (5) no evidence of class-wide damages.

Deceptive claim. The court first concluded that Brazil failed to meet the reasonable consumer standard, which requires evidence that members of the public are likely to be deceived by the alleged “All Natural Fruit” misrepresentation. Specifically, the court found that Brazil’s testimony, without more, was insufficient to survive summary judgment. His attempt to present additional evidence of the Food and Drug Administration’s (FDA) informal definition of the term “natural” and letters to other companies were also insufficient, because Brazil could not rely on the FDA’s informal policy to show consumers were likely to have been misled.

Unlawful claim. Summary judgment was also granted against Brazil’s UCL unlawful claim, which required a finding that Dole’s “All Natural Fruit” label violated the Sherman Law by misleading reasonable consumers. Because the court already found no genuine dispute regarding whether the label statement was misleading to reasonable consumers, no genuine dispute existed as to whether the Sherman Law was violated. Further, the court found that there were no additional predicate violations on which Brazil could rely to support his UCL unlawful claim.

After obtaining summary judgment in its favor, Dole’s motion to strike certain expert declarations was denied as moot.

The case number is 12-CV-01831-LHK.

Attorneys: Alex Peet (Lovelace Law Firm, PA) for Chad Brazil. William Lewis Stern (Morrison & Foerster LLP) for Dole Packaged Foods, LLC.

Companies: Dole Packaged Foods, LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews