OK to Challenge ‘All Natural’ Ice Cream Label

OAKLAND, Calif. (CN) - Two classes of ice-cream buyers have standing to sue Ben & Jerry's and Breyers for using "all natural" labels on ice cream made with synthetic chemical processes, a federal judge ruled.

The consolidated class action alleges that the ice-cream makers used alkalized cocoa powder to reduce acidity and give their ice cream a rich, chocolate flavor. The named plaintiffs say they bought many pints of ice cream over the past several years but would not have done so if they knew "that this ice cream contained cocoa that was not 'natural,'" according to the ruling from U.S. District Judge Phyllis Hamilton.

Though Ben & Jerry's and Breyers may ultimately prove that the plaintiffs do not any actionable claims, that does not diminish their standing, Hamilton wrote Thursday.

"If the plaintiffs did indeed purchase the ice cream based on the representation that it was 'all natural' and if that representation proves to be false, then they arguably have suffered an injury in fact," according to the 22-page ruling.

Though the class has alleged enough facts to prove fraud, in that they would not have purchased the ice cream had it been properly labeled, any factual dispute over whether the companies knew they were misleading customers should be an issue for trial, Hamilton added.

The judge also refused to find that federal law pre-empts the class's labeling claims.

"While the provisions [of the federal law] apply to representations about nutrients such as fiber and fat, and to representations such as 'diet' as applied to soft drinks, there is no indication of any regulation of the use of an adjective such as 'natural' on a food label," Hamilton wrote. "Accordingly, the court finds that the claims are not preempted."

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