For the second time, a federal court has rejected a complaint against defendants on behalf of a putative class, alleging defendants misled consumers by selling apple juice and applesauce products with the representation “Natural” and/or “All Natural Ingredients.”  Plaintiffs asserted five causes of action, all revolving around the claim the products contained trace, legal amounts of a pesticide residue. The court granted a motion to dismiss, and since further amended complaints would be futile, it dismissed the amended complaint WITHOUT leave to amend. Hawyuan Yu v. Dr Pepper Snapple Grp., Inc., No. 18-CV-06664-BLF, 2020 WL 5910071, at *1 (N.D. Cal. Oct. 6, 2020).

Plaintiff purchased Mott’s Natural Applesauce and Natural Apple Juice on multiple occasions from a Costco, claiming he saw, relied upon, and reasonably believed defendants’ representations that the products were “Natural” and made of “All Natural Ingredients.” He alleged that the products contained trace amounts of acetamiprid, a “synthetic and unnatural chemical, ” used in treating and harvesting crops, including fruits and vegetables.  Certain amounts of residuals are permitted to remain on fruits and vegetables.

Plaintiff’s first class action was dismissed, and in his amended complaint, he added a 2015 Consumer Reports Survey and a 2019 study that he claimed showed a majority of consumers understand “natural” to mean a product has no “toxic pesticides.”

The Ninth Circuit has explained that the three California statutes universally relied on by plaintiffs in attacking food labels (UCL, FAL, CLRA) are governed by the reasonable consumer test. Cheslow v. Ghirardelli Chocolate Co., 445 F. Supp. 3d 8, 15 (N.D. Cal. 2020) (quoting Williams v. Gerber Prod. Co., 552 F.3d 934, 938 (9th Cir. 2008)). Under the reasonable consumer standard, plaintiffs must show that members of the public are likely to be deceived and this requires more than a mere possibility that defendant’s product might conceivably be misunderstood by some consumers viewing it in an unreasonable manner. Rather, the test requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. Cheslow, 445 F. Supp. 3d at 16 (quoting Lavie v. Procter & Gamble Co., 129 Cal.Rptr.2d 486, 495 (Cal. Ct. App. 2003)). While the reasonable consumer question is not always amenable to resolution at the motion to dismiss stage, a court may determine, as a matter of law, that the alleged violations are simply not plausible. 2020 WL 5910071, at *4.
Plaintiff’s theory of deception—reasonable consumers interpret the word natural to mean a food product that is completely free of any trace pesticides—has been rejected by several courts: Parks v. Ainsworth Pet Nutrition, LLC, 377 F. Supp. 3d 241 (S.D.N.Y. 2019); Axon v. Citrus World, Inc., 354 F. Supp. 3d 170 (E.D.N.Y. 2018), aff’d sub nom. Axon v. Florida’s Nat. Growers, Inc., 813 F. App’x 701 (2d Cir. 2020); and In re General Mills Glyphosate Litig., No. 16-2869, 2017 WL 2983877 (D. Minn. July 12, 2017).  And the Ninth Circuit recently held in Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225, 1231 (9th Cir. 2019) that a plaintiff cannot rely on consumer surveys alone to make plausible the allegation that reasonable consumers are misled when the complaint does not otherwise plead facts establishing deception. In fact, one of the surveys cited in the amended pleading actually suggested that in contrast to the term “organic,” the term “natural” held no clear meaning for consumers. Thus the court agreed that the weight of authority in the federal courts shows that plaintiff’s reasonable consumer theory was not plausible as a matter of law. 2020 WL 5910071, at *4–5. “Plaintiff doesn’t have carte blanche to take illogical leaps and bounds and leave the Court to connect the dots.”  Id. at *6.