Judge Dismisses Dole From Class Action

     (CN) – A federal judge rejected a narrowed class action against Dole, which allegedly touted frozen berries and fruit cups as “all natural.”
     Lead plaintiff Chad Brazil sued Dole Packaged Foods in San Jose Federal Court, in 2012.
     Brazil claimed that 38 Dole products labeled as “all natural fruit” contained “synthetic ingredients,” including ascorbic and citric acid.
     Companies must refrain from the “all natural” tag under Food and Drug Administration regulations, Brazil said, if a product contains “unnatural ingredients such as added color, [or] synthetic and artificial substances.”
     Brazil claimed Dole’s products were mislabeled because they contained ingredients that precluded use of the term “natural.”
     Brazil 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.” 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 cited 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 granted Brazil’s request for class certification in part, in June.
     Koh allowed a plaintiff class of Californians who purchased Dole fruit products bearing the “all natural fruit” label, from April 11, 2008, and 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,” Koh wrote. “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.”
     On Monday, Koh granted Dole’s request for summary judgment, ruling the company’s “all natural fruit” label was not misleading to reasonable consumers under California’s Unfair Competition Law (UCL).
     Brazil “has confirmed that his UCL unlawful claim requires a finding that Dole’s ‘all natural fruit’ label violated the Sherman Law by misleading reasonable consumers,” the 13-page ruling states. “Because the court has found no genuine dispute as to whether Dole’s ‘all natural fruit’ label statement was misleading to reasonable consumers, the court necessarily must find no genuine dispute as to whether the Sherman Law was violated on that very basis. With no predicate violation on which to rely, Brazil’s UCL unlawful claim must fail.” (Citation omitted.)
     Koh said that when allowed the opportunity to offer evidence in response to Dole’s interrogatories, Brazil declined the invitation, vowing to do so later in expert reports.
     “Those expert reports have come and gone, and they contain no evidence of a likelihood of deception,” the ruling states. “Furthermore, the only survey evidence Brazil cites is in Brazil’s opposition to the instant summary judgment motion and relates to the issue of materiality of food labels.”
     Dole said, and Koh agreed, that Brazil offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged products, “would not normally be expected to be in” those products, as FDA definition requires.
     “As binding Ninth Circuit precedent makes clear, ‘a few isolated examples of actual deception are insufficient’ to survive summary judgment,” Koh wrote. “Where, as here, a plaintiff offers one isolated example of deception – i.e., Brazil’s – summary judgment must be granted.”

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