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Victory for Ben & Jerry’s in three-year legal wrangle over ‘all-natural’ ice cream with alkalized cocoa

By Elaine WATSON , 13-Jan-2014

Ben & Jerry’s - which voluntarily agreed to stop using the term ‘all-natural’ on its ice cream three years ago - has scored a  legal victory in a case filed just before it axed the emotive phrase from its packaging.

On January 7, US district judge Phyllis J. Hamilton denied a motion for class certification in a lawsuit* filed in September 2010 by plaintiff Skye Astiana alleging Ben & Jerry’s misled consumers by labeling as ‘all-natural’ products containing alkalized cocoa.

Alkalized or ‘dutched’ cocoa powder is made by adding alkalizing agents such as potassium carbonate to cocoa solids to neutralize acids and reduce bitter, astringent flavors.

However, its naturalness is the subject of much dispute.

So can you call alkalized cocoa ‘all-natural’ or not?

So what can we learn from judge Hamilton’s order ? Is it now OK to use alkalized cocoa in food products and market them as ‘all-natural’?

As is often the case in such lawsuits, however, the devil is in the detail, and there is no simple answer.

Alkalized cocoa powder (pictured right) is darker in color. Picture: cocktailfiesta.com

Indeed, a closer look through the 23-page order from judge Hamilton reveals that the merits of this case did not really hinge upon alkalized cocoa’s natural credentials.

In fact, Hamilton's refusal to certify the class was primarily because the plaintiff did not show that a method existed for determining who fits within her proposed class, or prove that her claims were typical of the proposed class.

Another problem was that the plaintiff had not proved consumers would be willing to pay extra for all-natural ice cream, or indeed that consumers had paid a premium for it. 

 Attorney: The mere fact that all consumers were exposed to the same labeling was not enough

Rebecca Cross, a San Francisco-based attorney at law firm BraunHagey & Borden LLP, told FoodNavigator-USA that the ruling showed how tough it was to get 'natural' cases certified as class actions.

She added: "Judge Hamilton’s decision simply adheres to the requirements of the Supreme Court’s ruling in Comcast (Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 - 2013), which held that there can be no class where a plaintiff does not show there is a way to calculate damages on a class wide basis.

"Court also denied class certification for lack of typicality:  Plaintiff failed to show that other consumers shared her view and actually cared that the product may have contained a synthetic processing agent... The mere fact that all consumers were exposed to the same labeling was not enough."

Comcast should make it difficult for any of the pending 'natural' cases to be certified as class actions

She added: "Comcast should make it difficult for any of the pending “natural” cases to be certified as class actions.  Likewise, it will also be difficult for these plaintiffs to show that any significant percentage of consumers care about any of their claims.  For example, the percentage of consumers who think “natural” means free from genetically-modified ingredients or free from pesticides must be close not non-existent." 

Defense expert: Only 3% of consumers surveyed said using cocoa powder processed with a ‘natural’ alkalizing agent would make them more likely to buy

Ben & Jerry's - which has been very public about its support for mandatory GMO labeling - recently made a commitment to phase out GMOs from its product range - which it aims to do by summer 2014

To assess consumer perceptions of what is ‘all natural’ in relation to ice cream, Ben & Jerry’s expert Dr. Kent Van Liere conducted a survey  of 400 consumers showing that only 3% said the use of cocoa powder processed using a ‘natural’ alkali would make them more likely to buy.  

Meanwhile, only 13% of consumers expected that the "all natural" label meant that the alkali used to process the cocoa was natural.

The other factor muddying the waters in this case is that at least some of the Ben & Jerry's products labeled ‘all natural’ contained cocoa that had been alkalized with a natural alkalizing agent as opposed to a synthetic one, and there was no reliable way to determine which products were which from the ingredients label, said judge Hamilton.

Ben & Jerry’s: Our products are all natural as reasonable consumers would understand that term... but we don’t believe ‘all-natural’ claims are the best way to convey our core values

Unilever-owned Ben & Jerry's voluntarily decided to remove the term ‘all-natural’ from its products in late 2010 after being targeted in a high profile media campaign by the Centre for Science in the Public Interest (CSPI).

In a letter  to the CSPI dated September 21, 2010, CEO Jostein Solheim said he believed his products were “all natural as reasonable consumers would understand that term”.

But he added: “We don’t believe that ‘all-natural’ claims are the best way to convey Ben & Jerry’s current core values”, citing its commitment to fair-trade, cage-free eggs and milk from family farms that do not use bovine growth hormones.

*In 2012, Unilever agreed to create a $5m settlement fund to resolve the litigation. But later that year, the court refused to approve the settlement, citing problems with the claim procedure and the amount requested for fees and costs among other things. A new complaint was then filed by another plaintiff  (Colleen Tobin v. Conopco, Inc. d/b/a Unilever and Ben & Jerry’s Homemade, Inc., Case No. 12-cv-5812, New Jersey District Court), but was voluntarily dismissed shortly afterwards.

Click here  to find out more about a Feb 13 legal webinar hosted by Perrin Conferences on 'all-natural' claims on food labels moderated by FoodNavigator-USA editor Elaine Watson.

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