Dole Consumers Get 9th Circuit Win in ‘All Natural’ Class Action

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Plaintiffs in a class action lawsuit alleging Dole misleads consumers by labeling its frozen berry products as “all natural” when they contain synthetic ingredients won in the Ninth Circuit. However, the buyers have more work to do.

Lead plaintiff Chad Brazil alleged in the fruit mislabeling class action lawsuit that by using “all natural” on the labeling and online to describe its mixed fruit products, Dole misled consumers into thinking that no artificial or synthetic ingredients were added to the products.

Brazil argued that Dole’s use of artificial citric acid and ascorbic acid as chemical preservatives violated the U.S. Food and Drug Administration’s informal policy regarding natural foods.

The class action was decertified and tossed on a motion for summary judgment. U.S. District Judge Lucy Koh tossed the plaintiff’s model for damages and also found that a reasonable consumer would not be deceived by Dole’s packaging.

The class action was revived in part by the Ninth Circuit reversing Judge Koh’s decision that reasonable consumers wouldn’t be misled. However, Judge Koh’s decision on damages was upheld, making recovery very difficult.

The Ninth Circuit determined that the class action damages should be limited to the difference between the prices consumers paid and the value of the fruit they bought and account for consumers who would have bought the product anyway, even though it contained synthetic ingredients.

Damages will be difficult to recover because the plaintiff did not establish that there was no value in Dole frozen berry products and recovery will be limited to the premium consumers paid under the false pretense that the berries did not contain any synthetic ingredients.

“Because Brazil did not explain how this premium would be calculated with proof common to the class, the district court did not abuse its discretion by granting Dole’s motion to decertify,” noted the Ninth Circuit.

Injunctive relief is still an option for the plaintiff.

On appeal, the plaintiff argued that the mislabeling of Dole products as “all natural” violated a California law requiring companies to disclose that chemical additives are used as preservatives and, a result of Dole’s alleged mislabeling, California consumers unknowingly broke health and safety regulations that make it illegal to possess food products that have been misbranded.

The class action plaintiff further argued that reasonable consumers would not elect to purchase the products if they were aware that they could potentially be penalized with jail time and a $1,000 fine for violating the statute.

Dole countered that the fruit products weren’t misbranded as “all natural” because citric acid and ascorbic acid are “normally expected” to be included in fruit products, and therefore they fell within U.S. Food and Drug Administration policies covering natural foods.

Brazil is represented by Pierce Gore of Pratt & Associates, Colin H. Dunn of Clifford Law Offices PC and Charles F. Barrett of Neal & Harwell.

The Dole All Natural Class Action Lawsuit is Chad Brazil v. Dole Packaged Foods LLC, Case No. 14-17480, in the 9th U.S. Circuit Court of Appeals.