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March 28th, 2016

9th Circuit Overrules Dismissal of Yogurt Labeling Case to Wait for FDA Definition of ‘Natural’

The U.S. Court of Appeals for the Ninth Circuit last week overruled a lower court’s perfectly sound dismissal with prejudice of a food labeling class action against Chobani yogurt.

In her February 2014 dismissal of the claim that Chobani’s use of the word “natural” on its yogurt labeling unlawfully misled consumers about ingredients, Northern District of California Judge Lucy Koh wrote that, “Plaintiffs do not provide… any basis to support their claim that the color additives which Defendant uses in its yogurts are in fact ‘highly processed unnatural substances.’ Plaintiffs also provide no basis whatsoever to support their allegation that fruit and vegetable juice is somehow unnatural, nor explain with any specificity what they contend is ‘unnatural’ about these particular ingredients.”

Judge Koh also noted that, in any case, the plaintiffs failed to sufficiently plead reliance on any allegedly misleading label language.  (Judge Koh was recently nominated by President Obama for a seat on the Ninth Circuit.)

ATRA’s 2014/2015 Judicial Hellholes report applauded Judge Koh’s commonsense dismissal:

No one believes for a moment that Judge Koh’s commonsense dismissal of this particular waste of court resources will end all efforts by shameless class-action lawyers to get rich beyond their wildest dreams at everyone else’s expense. But perhaps it will discourage future food-labeling suits from incredibly claiming that concentrated or dehydrated fruit juices are somehow “unnatural.”

How foolish of us to think the Ninth Circuit would uphold Judge Koh and further discourage the abuse of our civil justice system by the self-serving parasites known as class action lawyers.  It instead has given the parasites hope by reversing the dismissal, remanding the case back to the trial court and staying Kane v. Chobani until the federal Food and Drug Administration gets around to defining the terms “natural” and “evaporated cane juice.”

The FDA has been under pressure from the courts and defense counsel for many years to offer relevant guidance and definitions of “natural” and “all natural.”  But having been largely captured by the plaintiffs’ bar, which prefers the absence of bright-line definitions that could slow or halt their litigation gravy train, a compliant FDA as recently as January 2014 “respectfully declined” to do so.

More recently, as “natural” labeling lawsuits continue to pile up, particularly in the Northern District of California now known derisively as the “food court,” the FDA has reluctantly pledged to offer definitions in a final rule by the end of 2016.  And rather than respect Judge Koh’s dismissal with prejudice, the Ninth Circuit would have us all wait a little longer for the regulatory agency, just as Samuel Beckett’s Vladimir and Estragon absurdly waited for Godot

Incidentally, the public can weigh in on the FDA’s proposed definitions, and ATRA urges its readers to do so at Regulations.Gov.

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