The latest blog post from Frank Azar:
On July 22nd, 2014, New Jersey resident Yosh Jefferson filed a class action against Conopco Inc., the maker of Breyers Ice Cream, for false advertising. The lawsuit is part of a growing trend for today’s consumers, who have statistically been seeking foods with fewer synthetic ingredients; other recent class action lawsuits having been filed against companies like Red Bull, 5-Hour Energy, and Naked Juice. Just like these other lawsuits, the class action against Conopco was on the grounds of false advertising.
Mr. Jefferson alleged that Breyers wrongly advertises that its ice cream is “All Natural”, giving the company grounds to raise prices over ice creams with artificial ingredients and leading consumers to pay a premium (38% more, Jefferson alleged). However, while Breyers packaging might say “All Natural”, it might actually contain artificial ingredients. Jefferson claims that this “All Natural” label is a mischaracterization of ice creams that contain alkalized cocoa, a non-natural processed ingredient produced from synthesized ingredients like potassium carbonate.
In this case, the essential question was: Can alkalized cocoa, a product that has been in use for around two hundred years, be considered a “natural” ingredient when it is made with an artificial ingredient like potassium carbonate?
Now, this week, a New Jersey court has dismissed the case as each party has decided to not proceed with the lawsuit, leaving an air of uncertainty over whether Conopco was guilty of false advertising.
This type of food labeling case largely relies on the judge and whether he or she believes the lawsuit has been preempted by a ruling or regulation from the F.D.A. In this case, both parties came to an undisclosed settlement, but in other cases, judges have allowed the cases to proceed. Many other groups eventually decided to pursue their lawsuits against other companies to varying degrees of success, creating a real impetus for the United States Food and Drug Administration to provide a comprehensive ruling on what is deemed a “natural” ingredient and what is not.
For now, Breyers has replaced the “All Natural” label with “Original”.
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