A federal judge on Monday tentatively denied certification of a consumer class action alleging that the “100 Percent Natural” labels on Wesson cooking oils are misleading because the products contain seeds from genetically modified plants.
U.S. District Judge Margaret Morrow raised concerns during a hearing about certain claims against ConAgra Foods Inc., which makes Wesson oils, but gave plaintiffs an opportunity to amend their certification motion, according to Adam Levitt, a director at Grant & Eisenhofer’s Chicago office.
“The judge wants us to be clear on our theory of liability,” said Levitt, co-lead plaintiffs attorney. “What Judge Morrow wants from us is to show that ConAgra’s representation here—that the product is 100 percent natural—when in fact we allege that it’s not can be established on a common basis and is a predominant and material question for all class members in each of the states where we seek to certify classes.”
ConAgra had argued in court papers that the plaintiffs would have varying opinions about what constitutes “natural.”
“It is well established that ‘natural’ has no fixed meaning or definition—according to the FDA, the term means different things to different people, and to some people means nothing at all,” wrote ConAgra attorney Robert Hawk, a partner in the Menlo Park, Calif., office of Hogan Lovells.
A. Brooks Gresham, a partner in the Los Angeles office of McGuireWoods who has since replaced Hawk as ConAgra’s attorney, declined to comment.
The case is one of several alleging that food labels touting “natural” ingredients are misleading if the products contain genetically modified organisms.
In 2011, six consumer actions against ConAgra were consolidated for pretrial purposes before Morrow in the Central District of California. A consolidated complaint filed by plaintiffs in 15 states sought to certify a nationwide class of consumers who bought Wesson oils beginning on June 27, 2007. The plaintiffs proposed subclasses in the 15 states, including Nebraska, but later voluntarily withdrew claims in four of those states.
The complaint, which addresses labels on Wesson’s canola, vegetable, corn and “best blend” oils, seeks to certify a nationwide class and 11 subclasses under the consumer laws of each of their states.
Levitt said he remained optimistic about the future of the case.
“We look forward to the opportunity to rebrief the issue and file our amended motion for class certification,” he said.
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