Smith_JamesGuest Commentary

by James D. Smith, Bryan Cave LLP

In what seems likely to become a defining case on appeal, Northern District of California Judge Lucy Koh granted summary judgment this week in a long-running food labeling class action. The plaintiff in Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N.D. Cal.), alleges that 10 Dole products are misbranded because their labels say the products contain “All Natural Fruit.” Mr. Brazil contends this is false because the products contain ascorbic acid (commonly known as Vitamin C) and citric acid (found in citrus). Both of those ingredients, of course, are naturally occurring compounds; many food manufacturers add them because of their natural preservative effects. The 10 products include diced apples, pears, oranges, and grapefruit packed in juice. For the past two years, Mr. Brazil and his counsel have pressed this litigation, alleging that the product labels somehow deceived him because neither he nor any other reasonable consumer would believe that fruit packed in juice contains Vitamin C or citric acid.

The procedural history is long, but readers interested in food labeling class actions in the Northern District of California may want to review Judge Koh’s earlier substantive rulings. By the time she granted summary judgment on December 8, Judge Koh had narrowed the case to a single injunction class. As an aside, Judge Koh’s November 6, 2014, order decertifying the damages class nicely shows why a hedonic damages regression analysis—which many food labeling class action plaintiffs try to rely on to show class-wide damages—isn’t feasible in these types of cases. This most recent ruling in Brazil is noteworthy because it explains that a named plaintiff’s subjective interpretation of a label isn’t sufficient to meet the burden of proving that the label is likely to mislead consumers under California’s Unfair Competition Law (“UCL”).

Granting summary judgment, Judge Koh concluded “there is insufficient evidence that the ‘All Natural Fruit’ label statement on the challenged Dole products was likely to mislead reasonable consumers and that the label statements were therefore unlawful on that basis.” That plaintiff did not attempt to use consumer surveys to establish that the labeling statements could mislead a significant portion of the public or of targeted consumers. Instead, he relied on informal FDA statements that “natural” means nothing artificial or synthetic “has been included in, or has been added to, a food that would not normally be expected to be in the food.” (Emphasis added.) As we’ll see, that plaintiff’s failure to establish that consumers would not normally expect ascorbic acid or citric acid to be in the food doomed his claims.

The court did not address whether ascorbic acid and citric acid are “natural.” Instead, it granted summary judgment to Dole because Mr. Brazil “has offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged Dole products, ‘would not normally be expected to be in’ those products, as the FDA [informal] definition requires.” While surveys and expert testimony regarding consumer expectations are not essential elements of a plaintiff’s California consumer fraud claim, “a few isolated examples of actual deception are insufficient” under the law. Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008). All Mr. Brazil offered, however, was his understanding that all of the contents, not just the fruit, were “all natural.” That testimony, without more, would be insufficient to meet his burden of proof on summary judgment.

While Judge Koh took pains to clarify that she was not requiring the plaintiff to offer evidence of consumer surveys or proof that more than 50 percent of the public would be deceived, it is difficult to see how a plaintiff could satisfy its burden without a statistically-significant survey of consumers. After all, the plaintiff’s burden is to establish that a reasonable consumer would not normally expect an ingredient (here, ascorbic acid and citric acid) to be in a product. Mr. Brazil unsuccessfully attempted to overcome that obstacle by arguing that his subjective understanding could apply to the entire class.

Brazil also reinforces the importance of basic litigation techniques in class actions. Dole utilized contention interrogatories that asked Mr. Brazil to state all facts supporting his claim that a reasonable consumer would understand that the products do not contain synthetic, artificial, or excessively-processed ingredients (phrases taken from FDA statements). As is common in these situations, the plaintiff declined to answer substantively, promising that his expert reports would identify such facts. The expert reports, however, were silent on the topic. For those representing food producers, this is a good reminder to use contention interrogatories and to reexamine them after discovery closes. If the plaintiff promises to answer a contention interrogatory through expert reports but fails to do to so, that should amount to proof preclusion and provide the basis for summary judgment. That emphasizes the importance of tracking discovery responses, pressing motions to compel as needed, and tying original responses to subsequently produced material (such as expert reports) to show that the plaintiff cannot produce admissible evidence supporting an essential element of its claims.

This decision may prompt more food labeling plaintiffs to submit consumer surveys purporting to show that labels mislead the reasonable consumer. Judge Koh’s decision doesn’t infer that Dole submitted a consumer survey suggesting that consumers don’t share Mr. Brazil’s interpretation of the “All Natural Fruit” label. And, to be sure, it isn’t the defendant’s burden to disprove the plaintiff’s case. But defendants may want to consider using such surveys to show that labels do not mislead consumers or that no uniform understanding of “all natural” (or whatever phrase is at issue) exists. Properly designed and executed surveys aren’t inexpensive, of course, but they may be useful tools to either defeat class certification or obtain summary judgment. Particularly considering how Brazil may lead plaintiffs to alter their tactics, defendants will want to think about such surveys early in the case.

Presuming the plaintiff appeals, Brazil could lead to a significant decision from the Ninth Circuit regarding the type of proof required regarding reasonable consumer expectations in food labeling class actions.