• Ninth Circuit Reverses Summary Judgment Regarding Dole's "All-Natural Fruit" Labeling but Affirms Decertification of the Damages Class
  • October 11, 2016 | Authors: Edgar Asebey; Jonathan Berman; Colleen M. Heisey; Francoise S. Labrousse; Cristiana Spontoni
  • Law Firms: Jones Day - Miami Office ; Jones Day - Washington Office ; Jones Day - Paris Office ; Jones Day - Brussels Office
  • On September 12, 2016, in an unpublished disposition, the Ninth Circuit reversed in part a district court's ruling that "All Natural Fruit" labeling on Dole Food Co. products was unlikely to deceive consumers. The plaintiff, Chad Brazil, who sought to represent a class of consumers, alleged that Dole's food products labeled with "all-natural" claims would deceive a reasonable consumer as they contained synthetic ingredients, such as ascorbic acid and citric acid. Brazil cited FDA's informal definition of "natural," which means "that 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," and FDA's latest warning letters to food sellers for describing their products as "100% Natural" or "All Natural" when such products contained synthetic citric acid, among other substances. In this case, Brazil alleged that although both substances, ascorbic acid and citric acid, are found naturally in citrus fruits, these are mass-produced and added to fruit products as preservatives. The Ninth Circuit concluded that the introduction of both substances in Dole's products were not "natural" and that "the evidence could allow a trier of fact to conclude that Dole's description of its products as 'All Natural Fruit' is misleading to a reasonable consumer."

    But while the Ninth Circuit permitted the plaintiff to further pursue his claims, the court affirmed significant restrictions on the available theories and remedies. The plaintiff had sought damages equaling the full purchase price of every allegedly deceptively labeled product that the class had purchased. He argued that he was entitled to this remedy because a misbranded product is not just illegal to sell but illegal to buy and hold, potentially subjecting unsuspecting consumers to fines or prosecution. The District Court had dismissed this claim, and the Ninth Circuit affirmed, calling this theory "outlandish." The Ninth Circuit further held that since the products were not worthless, plaintiff could not demand a full refund. Rather, the damages available are limited to the "price premium"-"the difference between the prices customers paid and the value of the fruit they bought." Since the plaintiff had no methodology that would permit calculation of this premium across the class, the District Court was correct to decertify the damages class.

    The Ninth Circuit remanded the case to allow the plaintiff to pursue injunctive relief on behalf of the class, and to pursue his remaining individual claim for restitution.