A Northern District Court recently told plaintiff’s counsel that merely alleging that a product contains ingredients that are not “natural”, without supplying any objective definition of natural, will not allow such claims to move past the pleading stage.

On August 12, 2014, Judge Samuel Conti dismissed several false advertising claims filed by plaintiffs Robert Figy and Mary Swearingen based on allegations that Defendant Frito-Lay misled consumers by advertising the products “Frito-Lay’s Rold Gold Sticks Pretzels,” “Frito-Lay’s Rold Gold Thins Pretzels” and “Frito-Lay’s Rold Gold Low Fat Tiny Twists Pretzels” as “Made With All Natural Ingredients” when the products contained the “artificial, synthetic and unnatural ingredients niacin, reduced iron, thiamin mononitrate, riboflavin, folic acid and ammonium bicarbonate.”

Although noting that whether a consumer was deceived by a representation is usually a question of fact, the court nevertheless dismissed false advertising claims based on “All Natural” representations because the complaint “provides no detail whatsoever about how or why the offending ingredients are unnatural.” In so holding, the court agreed with Frito-Lay that plaintiffs must plead a “plausible objective definition of the term ‘All Natural’ or that [their] subjective definition of the term ‘All Natural’ is one that is shared by the reasonable consumer.”

Conclusory assertions that certain ingredients were not “natural” were deemed insufficient to meet plaintiffs’ Rule 9(b) pleading requirements, no matter how “foreign or synthetic-sounding an ingredient’s name might be….”

This holding, following similar rulings in Kane v. Chobani, Inc. and Chin v. General Mills, represents a small victory for the defendant-manufacturers and producers of food products, requiring plaintiffs to actually articulate why an ingredient is not natural (or does not fall in line with the “reasonable consumer’s” definition of a natural ingredient). Such decisions could signify a decline in plaintiffs’ ability to successfully bring “natural” false advertising claims, which have dominated the food class action sphere for the last few years.

This article was prepared by Stephanie Stroup of Norton Rose Fulbright’s Los Angeles office (stephanie.stroup@nortonrosefulbright.com and +1 213 892 9315).