Dole Class Action Narrowed, but Proceeds

     (CN) – A proposed class action against Dole, for touting frozen berries and fruit cups as “all natural,” may proceed in part and cover California buyers, a federal judge ruled.
     Lead plaintiff Chad Brazil sued Dole Packaged Foods in San Jose Federal Court in 2012.
     Brazil claimed 38 Dole products labeled as “all natural fruit” contained “synthetic ingredients,” including ascorbic and citric acid.
     Food and Drug Administration regulations require companies to refrain from the “all natural” tag, Brazil said, if a product contains “unnatural ingredients such as added color, [or] synthetic and artificial substances.”
     Dole mislabeled its products, Brazil claimed, because they contained ingredients that precluded use of the term “natural.”
     Brazil specifically cited a 12-ounce bag of Dole mixed fruit, which used “the phrase ‘all natural fruit’ even though this product contains the following artificial ingredients: ascorbic acid, citric acid, malic acid and added flavors.”
     Brazil claimed he had spent more than $25 on Dole products.
     Dole filed motions to dismiss original and amended complaints.
     Dole Food Co. was removed from the lawsuit as a result. Dole’s frozen blueberries and smoothie shaker products – which Brazil testified that he never purchased – were also dismissed.
     The narrowed lawsuit cites 10 products: “(1) Tropical Fruit (can), (2) Mixed Fruit (cup), (3) Diced Peaches, (4) Diced Apples, (5) Diced Pears, (6) Mandarin Oranges, (7) Pineapple Tidbits, (8) Red Grapefruit Sunrise, (9) Tropical Fruit (cup), (10) Mixed Fruit (bag).”
     U.S. District Judge Lucy Koh last week granted Brazil’s request for class certification, in part.
     Koh allowed for a plaintiff class of Californians who purchased Dole fruit products bearing the “all natural fruit” label, from April 11, 2008.
     Koh denied Brazil’s request for a nationwide class.
     “Dole does not dispute that a class action is superior to other available methods for the fair and efficient adjudication of this controversy,” the 36-page ruling states. “Here, the value of each individual claim is likely small, such that the only practical way for this case to proceed is as a class action. Moreover, neither party has raised any issues related to efficiency, and the court finds that this dispute is more efficiently resolved as a class action.”
     Dole and its subsidiaries and affiliates, governmental entities, and the court involved are excluded from the class, Koh said.
     “Each nonresident class member’s claims should be governed by and decided under the consumer protection laws of the states in which the various class members reside and in which the transactions took place,” the ruling states.
     Koh found that Brazil submitted a valid regression model to show damages on a classwide basis, through common proof.
     Dole opposed the model, which compares data on identical Dole products before and after the “all natural” label was introduced.
     “(A)ccording to Dole, the model will be unable to account for price differences based on the nature and location of the outlet in which they are sold, or the availability of discounts. Because of these variations, Dole contends, different consumers allegedly suffered different amounts of damages,” the ruling states. “However, Dole does not explain how these regional price differences would impact the actual measure of damages in the regression model: price changes within regions that correspond to the introduction and/or removal of the allegedly misleading label statements.”
     Koh sided with Brazil.
     “(B)ecause Brazil has advanced a damages methodology that is capable of ‘tracing the damages to the plaintiff’s theory of liability,’ Brazil has successfully shown that questions common to the class predominate,” the ruling states.
     Koh ordered an amended complaint to be filed by June 13.

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