On July 31, 2013 the Southern District of California refused to certify nationwide classes in nearly identical “all natural” cases brought against Kashi and its subsidiary, Bare Naked. In Astiana v. Kashi Co., Case No. 3:11-cv-01967, plaintiffs alleged that the “Nothing artificial” and “All natural” language on certain of Kashi’s product labels was misleading because the products contained or were processed with synthetic substances. In Thurston v. Bear Naked Inc., Case No. 3:11-cv-02890, plaintiffs brought claims against products labeled “100% Pure & Natural” or “100% Natural” on the same grounds. Plaintiffs in both cases sought to certify separate nationwide classes for each label statement. Kashi and Bare Naked countered that there is no uniform definition of natural, and that many consumers would still consider the products in question “natural” even though they contained trace amounts of the allegedly synthetic ingredients.
Following Ninth Circuit precedent set by Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), the court refused to certify nationwide classes. As many readers are no doubt familiar, in Mazza, the Ninth Circuit determined that a nationwide class of consumers who purchased or leased Acura RLs would be inappropriate because, under California’s choice-of-law analysis, the consumer protection laws of each individual purchaser’s state would apply, thus defeating Rule 23’s “predominance of law” factor. The nationwide application of California law would thus impair other states’ interests.
In addition, the court took other steps to limit the “all natural” classes proposed by plaintiffs. In Kashi, Judge Marilyn L. Huff certified a California class for purchasers of the “Nothing artificial” products, but declined to certify a California class based on the “All natural” product labels, with the exception of those products that contained hexane-processed soy ingredients. The court noted that Kashi conceded these ingredients do not meet its own definition of “natural,” and are listed in federal regulations as “synthetic.” Similarly, in Bear Naked, the court declined to certify a broader California class based on the “100% Pure & Natural” or “100% Natural” labels, but instead certified only a class of purchasers of products containing hexane-processed soy and two additional ingredients that are designated by statute as “synthetic.”
In refusing to certify broader “All natural,” “100% Natural” and “100% Pure and Natural” classes, Judge Huff found that plaintiffs could not show that consumers have a uniform definition of “natural” that informs their purchasing decisions—rather, “natural” means different things to different people. The court, citing deposition testimony, stated that “consumers, including named plaintiffs, often equate ‘natural’ with ‘organic’ or hold ‘organic’ to a higher standard.” Additionally, the court noted that some of the challenged ingredients are listed by 7 C.F.R. § 205.605(b) as ingredients that are allowed in certified “organic” goods.
Other notable aspects of the decision include Judge Huff’s determination that the proper theory for damages would be to calculate the difference between the value expected versus value received, i.e., premium paid rather than full value of the products. She also held that the plaintiffs were not limited to representing class members who purchased the exact same products as the named plaintiffs did where the other products had the same misrepresentations on their labels. Finally, in analyzing whether plaintiff’s claims were typical of the class, Judge Huff stated that injury under the UCL, FAL and CLRA is an objective test—a named plaintiff’s individual experience with a product “is irrelevant” where the product is marketed with a material misrepresentation.
In the recent wave of food-misbranding cases, Kashi and Bear Naked are two of the first to reach a decision on class certification, and will no doubt have a significant impact on food-misbranding decisions going forward, especially in suits asserting “All natural” labeling violations.
