Whole Foods Says Deceptive Labeling Class Action Lawsuit Falls Short

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Whole Foods Market Inc. has asked a California federal judge to dismiss a proposed deceptive advertising class action lawsuit filed against the grocery store chain, alleging that they mislead customers by using the words “natural” and “evaporated cane juice” instead of sugar on their food labels for its 365 Everyday Value products.

U.S. District Judge Edward J. Davila in March agreed to dismiss an unjust enrichment claim in the Whole Foods class action lawsuit against but had allowed lead plaintiff Robert Pratt to amend the claim and try again.

At the time, Davila upheld claims alleging the company mislabeled a number of its food products as natural when they contained artificial ingredients, and used the phrase evaporated cane juice to describe one of the ingredients used, though it is really sugar, in violation of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act.

Whole Foods, like many other food companies who are defendants in false advertising class action lawsuits pending in throughout the U.S. court system, is bringing its dismissal motion in the wake of a U.S. Food and Drug Administration notice that it is re-evaluating its previous draft guidance on the use of the term “evaporated cane juice” on food labels.

The FDA’s 2009 guidance indicated to food manufacturers that the term “evaporated cane juice” misleads consumers to believe that products are healthier than they actually are, falsely suggesting that the sweeteners are juice, although evaporated cane juice is essentially sugar. In March, the FDA said it was considering altering its guidance, leading judges in several cases to dismiss class action lawsuits over the term or some of the claims within them.

Part of Whole Foods’ motion to dismiss is based on the FDA announcement.

“Plaintiff’s ECJ claims should be stayed or dismissed under the primary jurisdiction doctrine in light of the FDA’s recent decision to re-open comment on the ECJ policy Plaintiff seeks to enforce… The Court’s prior decision did not address the recent notice and was based on the determination that the FDA does not view the issue unsettled. The notice shows the FDA does view the issue unsettled,” the company wrote in its May 27 motion to dismiss the Whole Foods class action lawsuit.

Whole Foods is basing its argument, as well, on the strict liability theory that Judge Davila rejected in his prior ruling. Whole Foods wrote that “[t]he alleged duty to disclose the illegality of misbranded products is an attempt to impose on Whole Foods an obligation different from the federal requirement and is expressly preempted.”

Pratt had, in his amended Whole Foods class action lawsuit, attempted to demonstrate that he relied on the word “juice” in “evaporated cane juice” when purchasing the products, believing them to be healthy. Whole Foods attacks that claim.

“Plaintiff still uses ‘sugar’ and ‘dried cane syrup’ interchangeably, which confirms he knows cane refers to sugar. Plaintiff purports to rely on the word ‘juice’ to the exclusion of ‘evaporated’ and ‘cane,’  but acknowledges… that fruit juice concentrate is a well-known added sugar to watch out for,” Whole Foods wrote. “Plaintiff identifies other less common forms of cane, but never alleges he believed ECJ refers to any of them. Nor does Plaintiff allege a reasonable consumer would believe ECJ refers to any of the other forms of cane he belatedly identifies. Indeed, despite the Court’s admonishment, Plaintiff still does not allege what he or a reasonable consumer would understand ECJ to be if not a sweetener.”

Pratt originally filed the Whole Foods false advertising class action lawsuit on Nov. 2, 2012, and included foods in the grocery store chain’s 365 Everyday Value line including chicken broth, tomato ketchup, organic ketchup, apple cinnamon instant oatmeal, cola, ginger ale, and root beer, as well as natural Italian soda.

The defendant is represented by Pierce Gore of Pratt & Associates.

Whole Foods is represented by Jay W. Connolly, Giovanna A. Ferrari and Joseph J. Orzano of Seyfarth Shaw LLP. 

The Whole Foods Mislabeling Class Action Lawsuit is Pratt v. Whole Foods Market Inc., Case No. 5:12-cv-05652, in the U.S. District Court for the Northern District of California.