In a proposed settlement agreement for Astiana v. Ben and Jerry’s Homemade, Inc., the company would admit to no wrong-doing but agree to pay $5,000,000.00 to a group of plaintiffs allegedly injured by the company’s having labeled its ice cream “all natural,” when the company used Dutch cocoa—cocoa processed with a synthetic ingredient—in its products.
But it’s “one down, several to go” for the lead plaintiff and her attorneys in that case; in addition to her Ben and Jerry’s suit, Astiana is the lead plaintiff in Astiana v. Dreyer’s Grand Ice Cream Inc., a suit against Dreyer’s for the company’s use of the terms “all natural ingredients” and “all natural flavors,” as well as a plaintiff in Littlehale v. The Hain Celestial Group, et al., a suit against a cosmetics company for its use of glycerin in makeup packaged as “natural.” Not surprisingly, the same multi-state coalition of lawyers represents her in each case.
And how much will the “injured” plaintiffs get for their troubles? Under the proposed Ben and Jerry’s settlement, each plaintiff can recover $2 per ice cream package (up to $20 per household). They don’t even need to provide proof of purchase if they bought three or less. With such measly compensation, why continue robbing the time and resources of courts for claims that cause intangible if not uncertain injuries? (Hint: law firms can get upwards of 40% of the settlement money.)
These cases are but 3 of the 75+ of this sort that seek to regulate food labeling through the courts, particularly the Northern District of California federal court. The proposed settlement in this case came after the judge, as many others in that District have, denied the defendant’s motion to dismiss. Though expressing some doubt as to the plausibility of the claim that the plaintiffs were deceived, Judge Hamilton disagreed with the defendant’s contention that the state laws were preempted by FDA requirements and that plaintiffs failed to state a cognizable injury or claim.
But just what injury do these suits seek to prevent? Can it plausibly be said that these plaintiffs were duped into purchasing ice cream as part of what they thought was a healthy dietary regimen? As the defendant in the Dreyer’s case notes, if these plaintiffs were so concerned about eating “natural,” why did they repeatedly purchase products that contain Dutch cocoa and glycerin even after filing suits contesting these ingredients’ “naturalness?” (For an answer, $EE the hint above.)
And just what is “natural”? It’s an ambiguous term that, without clarification from the FDA, lends itself to subjectivity. As the plaintiffs in the Dreyer’s case admit, there is no shared understanding of the term even among regulators. As the defendants wryly state, ice cream itself “does not exist in nature.” Like the Dutch cocoa within it, ice cream is man-made. Does this make ice cream unnatural?
Businesses should not be subjected to plaintiffs’ arbitrary perceptions of what is and what is not “natural.” But resolving these questions through the California courts will lead to one state dictating packaging requirements for the entire country, or companies being forced to specially package products sold in California. It is the legislative branch and not the courts that is the proper institution for answering these questions.