The lawsuit* - filed by plaintiffs Bonnie Jo Pettinga, Caleb Johnson, Shawn Teufel, and Joseph Grey in Florida on September 9 - accuses B&G Foods of unlawfully labeling Maple Grove Farms pancake & waffle mixes, Old London sourdough melba toast, New York Style sea salt mini bagel chips and parmesan garlic & herb pita chips; and Mrs Dash taco seasoning mixes as ‘All-Natural’ when in fact they contain “unnatural, synthetic, and/or artificial ingredients”.
Reasonable consumers do not expect ‘all natural’ products to contain non-natural, highly processed ingredients, and GMOs
The plaintiffs take particular issue with “highly processed” ingredients such as dextrose and maltodextrin, which they argue are produced from genetically engineered corn via an acid or enzymatic hydrolysis - a process that reasonable consumers would not consider ‘natural’.
The xanthan gum used in the pancake & waffle mix, meanwhile, is not ‘natural’ because it is a “synthetic additive derived from the bacterium Xanthomonas campestris through a pure-culture fermentation process” and then “separated from the bacterial growth medium by the addition of isopropyl alcohol”.
And regardless of how they are processed, soy flour, corn starch, soy lecithin and yellow corn flour are not ‘natural’ because they likely come from genetically engineered crops, add the plaintiffs, who accuse B&G Foods of violating Florida’s Deceptive and Unfair Trade Practices Act, negligent misrepresentation; breach of express warranty; violation of the Magnusson-Moss Warranty Act; and unjust enrichment.
The complaint adds: “Reasonable consumers do not expect a product that claims to be “All Natural” to contain non-natural, highly processed ingredients, and genetically modified ingredients.”
Lawyer representing plaintiffs was disbarred in Texas
The plaintiffs are represented by the Eggnatz law firm P.A. , and the law offices of Howard W. Rubinstein, P.A., who has filed scores of cases against food & beverage firms over allegedly misleading ‘natural’ claims including Kellogg, Frito-Lay North America and General Mills.
Rubinstein was disbarred from practicing law in Texas in 1983 for accepting settlements without his clients’ knowledge or consent and comingling settlement funds with his personal funds, re-admitted in 1995 and then suspended in 2006, but now practices in Florida.
A case he filed in May 2012 (Gabbamonte v. The Kellogg Company, 12-cv-21678) also raised eyebrows in the trade when it emerged that the plaintiff was Joshua Eggnatz’s fiancé (now his wife), Laura Gabbamonte (now Laura Eggnatz).
How strong is the case?
In the B&G case, it is not clear what injunctive relief (eg. changes to labeling/marketing to correct the allegedly misleading statements) would be applicable as B&G Foods removed the ‘all-natural’ moniker from its packaging some time ago - well before the lawsuit was filed.
As for monetary relief/damages, given that the price of the products in question stayed the same or went up following the removal of the ‘all-natural’ claims, it is also unclear how the plaintiffs can argue that consumers were duped into paying over the odds for ‘all-natural’ products, and how their attorneys can come up with a viable model for calculating damages.
These factors notwithstanding, many such cases are still filed on a weekly basis because companies would rather settle than go through the cost and stress of protracted litigation, regardless of the merits of the case, said one legal source.
B&G Foods' attorney: Our client is confident that it will prevail
Asked to comment on the case, Noah Hagey, managing partner at law firm BraunHagey, which is representing B&G Foods, told FoodNavigator-USA: "This frivolous complaint was initiated by a lawyer, Howard Rubinstein, who has been disbarred in Texas and denied as class counsel in California, and these type of claims have been consistently rejected by courts in Florida, California, New York and around the country.
"Our client is confident that it will prevail – both on the merits and in holding plaintiff's counsel accountable for filing a knowingly false complaint."
FDA is not inclined to define natural at this time
While the Food & Drug Administration (FDA) has consistently stated that foods made from GM crops do not require special labeling as they are not materially different from their conventional counterparts, it has not provided legal clarity on whether GMOs belong in products labeled as ‘natural’.
And while some judges have asked it to pin this issue down to stop scores of lawsuits clogging up the court system, the agency has not, to date, shown any enthusiasm for doing so.
Indeed, in a letter to three federal judges penned in January 2014, the FDA chose to “respectfully decline” their requests to come to an administrative determination of whether GMOs belong in ‘all-natural’ foods.
FoodNavigator-USA has approached Mr Rubinstein for a comment.
*The case is Pettinga et al v B&G Foods 14-cv-81159.
Are all-natural claims worth the risk? Find out at FoodNavigator-USA's live online 60-minute forum on Natural & Clean Label Trends on Sept 30.