Kraft is Ignoring Evidence in ‘Natural’ Labeling Class Action, Plaintiffs Say

Plaintiffs in a Kraft class action lawsuit say Kraft’s motion for summary judgment should be denied now that enough evidence is in the record to show the company may have labeled some of its products deceptively.

Defendant Kraft Foods Group Inc. has moved for summary judgment on the premise that there’s no genuine controversy over whether the labeling on its Natural Cheese Fat Free Shredded Cheddar could be deceptive to a reasonable consumer.

Plaintiffs Claudia Morales and Mocha Gunaratna counter that the presence of artificial coloring in the Kraft product clearly makes the “natural” labeling misleading – or at a bare minimum, creates a genuine question as to whether the labeling could mislead reasonable consumers.

“Could a reasonable jury conclude that it is deceptive to label a food product ‘natural cheese’ when, in reality, it contains artificial color? Absolutely yes,” the plaintiffs argue.

Plaintiffs cite a body of evidence that they say supports a finding that the labeling of the Kraft products at issue is deceptive.

Two nationwide surveys conducted by Consumer Reports concluded that a vast majority of consumers generally believe the word “natural” means the product does not contain artificial coloring, according to the plaintiffs. They say thousands of public comments to the FDA express the same idea.

Furthermore, internal Kraft documents revealed during discovery show the company itself knows that consumers equate “natural cheese” with an absence of color additives, the plaintiffs say.

Kraft’s motion comes after the plaintiff’s own motion for summary judgment was denied in June. The company argued then as it does now that the plaintiffs offered no evidence showing that the ingredients annatto extract and titanium dioxide are not natural.

Annatto extract is derived from a plant seed, Kraft claims, and titanium dioxide is a mineral found in nature.

Morales and Gunaratna disagree. They say that annatto “must undergo substantial chemical processing in order to take a form suitable for coloring food, and may even include trace amounts of arsenic and lead.” Titanium dioxide is defined by the FDA as “synthetically prepared,” they say.

Ealier this summer, U.S. District Judge John A. Kronstadt tentatively withheld certification of the plaintiffs’ proposed Class while the FDA solicited public comments on the use of the term “natural” in food labeling.

While the FDA has not promulgated a formal rule on the issue, it has maintained as a matter of policy that the term “natural” means “nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in that food.”

Judge Kronstadt granted partial certification for a plaintiff Class consisting of persons who bought the Kraft product at issue since May 2010 “and who did so because the Product was described as ‘natural cheese,’ which meant that it contained no artificial ingredients.”

The plaintiffs are represented by Shireen M. Clarkson and Ryan J. Clarkson of the Clarkson Law Firm PC.

The Kraft Cheese False Advertising Class Action Lawsuit is Claudia Morales, et al. v. Kraft Foods Group Inc., Case No. 2:14-cv-04387, in the U.S. District Court for the Central District of California.

UPDATE: On Dec. 6, 2016, Kraft lost its renewed motion to stay a consumer class action lawsuit over claims it falsely marketed its shredded fat free cheddar cheese as “natural” when it allegedly contains artificial ingredients, flavor, and coloring.

UPDATE 2: On February 15, 2017, Kraft filed a motion to decertify the class action lawsuit which alleges the company does not use “all natural” ingredients.