'Natural' Target of False Advertising Class Action Escapes Liability

'Natural' Target of False Advertising Class Action Escapes Liability

A recent decision in the Central District of California marks a victory for a company using the term “natural” to advertise its shampoo and lotion products. Balser v. The Hain Celestial Group, Inc., CV 13-05604-R, December 18, 2013 (dismissing complaint with prejudice) [enhanced version available to lexis.com subscribers].

The manufacturer put the following claims on labels and web pages for Alba Botanica shampoos and lotions: We make natural, 100% vegetarian personal care products . . . . This means we don’t use parabens, sulfates, or phthalates. The web pages contained further lists of ingredients absent from the products. The labels displayed a list of all ingredients, including an explanation of what natural ingredients were added and what ingredients were excluded.

The plaintiffs alleged that the web pages and labels were false or misleading. The gist of the argument was that the term “natural” means “existing in or produced by nature; not artificial,” and that the term “vegetarian” means “only from vegetable matter.” The court summarily dismissed the complaint. Key aspects of the brief decision are as follows:

• “Natural” is a vague and ambiguous term without a single or universal definition.

• The plaintiffs’ proposed definition of “natural” as “existing in or produced by nature” had no application to manufactured products like shampoos and lotions, which consumers don’t expect to occur in nature. (The court added, “there are no shampoo trees.”)

• The plaintiffs’ proposed definition of vegetarian as “only from vegetable matter,” is at odds with a common understanding of “without animal products.”

• The sense in which the manufacturer was using the contested terms was carefully explained on the labels and the web pages.

• The products at issue were not food products, but rather packaged cosmetic and toiletry products, which are typically understood to be manufactured.

• The plaintiffs did not explain how they relied upon or allegedly were harmed by terms used on the labels or the web pages.

This is only a single lower-court decision. Nevertheless, it provides some hope – as well as helpful guidance – for manufacturers swimming in a rising tide of class actions against “natural” claims on a wide range of products. Important lessons include the following:

• Defining how terms like “natural” are used is very important.

• Focusing on individual ingredients is generally safer than making claims about an overall product.

• Avoiding the use of artificial or synthetic ingredients is essential if a “natural” claim is going to be made. This is one of the few points on which the FDA and USDA have given guidance regarding use of the term “natural.”

• Context matters. Using a term like “natural” on a manufactured product, accompanied by a clear and conspicuous explanation of the meaning with reference to particular ingredients, is typically less risky than a generalized use on a food product.

• Advertising-based class actions often encounter problems in proving what the individual members of the purported class saw, much less what they understood or believed, when they were deciding whether to buy a product. Careful attention to these threshold issues can often provide a means to shorten litigation, or at least to narrow the issues in the case.

This GT Client Advisory was prepared by Ed Chansky. Questions about this information can be directed to:
> Ed Chansky | 702.599.8016 |
chanskye@gtlaw.com
> Or your Greenberg Traurig attorney

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