Judge Melts Cert. of Ben & Jerry’s Ice Cream Class Action Lawsuit

A California federal judge on Tuesday refused to certify a class action lawsuit filed against Ben & Jerry’s Homemade Inc. that accuses the ice cream company of deceptively marketing its ice cream  as “all natural” when it contains cocoa that is alkalized with a “synthetic” agent.

In his Jan. 7 decision, U.S. District Judge Phyllis J. Hamilton ruled that plaintiff Skye Astiania had not shown how to figure out the Class of those who purchased Ben & Jerry ice cream products. The judge also said that the damages to each member was not the same, and there was no method for how to properly award relief.

“Because plaintiff has not shown that a method exists for determining who, among the many California purchasers of Ben & Jerry’s, fits within the proposed class, the class is not ascertainable,” Hamilton wrote.

The federal judge also said that for a class action lawsuit to stand, the plaintiff has to prove that she’s been personally injured. Hamilton says that Astiania does allege sufficient facts “to establish standing,” meaning that she was injured by Ben & Jerry’s actions and could be chosen as the class representative, if the class had been certified. The federal judge also said that the class would have met the numerosity and commonality requirements necessary for class to be certified, if the other requirements had also been met.

Skye Astiana filed the Ben & Jerry’s class action lawsuit on Sept. 29, 2010, alleging that the company engaged in unlawful business practices, unfair business practices, fraudulent business practices and false advertising in violation of California business law as well as unjust enrichment and common law fraud by calling its products “all natural” even though it used a cocoa that was alkalinized with a synthetic substance.

Ben & Jerry’s said its suppliers used several alkalis during processing the cocoa, which they say they buy from 15 different suppliers, and that some of the processes are considered “natural” according to the U.S. Food and Drug Administration. although not all.

However, according to FDA regulations, food companies are not required to state which alkali is used.

“The packaging labels say only ‘processed with alkali,’ because that is all the FDA requires,” the judge writes.

And this is where the difficulty of ascertaining the class comes into play, according to Hamilton, because there is no way to prove who purchased products with synthetic alkalis, and who purchased products with natural ones.

“Plaintiff has provided no evidence as to which ice cream contained the allegedly ‘synthetic ingredient,'” the judge said. “More importantly, plaintiff has not shown that a mean exists for identifying the alkali in every class member’s ice cream purchases.”

The plaintiff is represented by Michael D. Braun of Braun Law Group PC, Janet Lindner Spielberg of the Law Offices of Janet Lindner Spielberg, and Joseph N. Kravec Jr. and Wyatt A. Lison of Feinstein Doyle Payne & Kravec LLC.

The Ben & Jerry’s Ice Cream Class Action Lawsuit is Astiana v. Ben & Jerry’s Homemade Inc., Case No. 4:10-cv-04387, in the U.S. District Court for the Northern District of California.