United States: It's Only "Natural"

Class action litigation over consumer product claims continues to rise, and no product is safe, whether food, dietary supplement, or cosmetic. Those manufacturers looking to distinguish their products through the use of the terms "natural" or "all-natural" have done so at the risk of drawing attention from the plaintiff's bar and consumer groups. In August 2014, a class action lawsuit, Paulino et al v. Conopco Inc., was filed in the Eastern District of New York, alleging that Conopco, doing business as Unilever, misled consumers when it marketed a line of its personal care products (including shampoos, conditioners, body washes, and lotions) under the product name "Suave NATURALS." Plaintiffs allege that the representation of "NATURALS" on the packaging of these products is misleading because the products contain unnatural and synthetic ingredients.

On August 17, 2015, Judge Gleeson ruled on Conopco's motion to dismiss, allowing the majority of the claims to survive and move forward. Specifically, Judge Gleeson left intact claims for breach of warranty and violations of New York General Business Law § 349, which prohibits deceptive acts or practices. As Judge Gleeson indicated, a claim under § 349 only requires that a plaintiff allege (1) that the defendant was engaged in a "consumer-oriented" business practice or act; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.

The crux of the Plaintiffs' claims, as it regards the misleading element under § 349, is twofold: First, that Conopco knew that the use of the term "natural" on consumer products is a "purchase motivator"; and second, that the Plaintiffs purchased the products believing they were, in fact, "natural," when they were not. These are both factual determinations.

Plaintiffs pointed to other aspects of the label to bolster their allegations that a reasonable consumer would be misled, drawing attention to the implication that the products were infused with certain ingredients like sun-ripened strawberries, wild cherry blossoms, and tropical coconuts. For the Plaintiffs, the fact that the products bore pictures of nature scenes, and images of cherry blossoms and coconuts, only added to the confusion—at least according to the complaint.

Conopco argued that no reasonable consumer could have been confused by its labels. Conopco indicated that its products are a value brand, and that its labels make no explicit claim of being "all natural" or "100% natural." Instead, the Judge found that the complaint sufficiently alleged violations of § 349, indicating that a reasonable juror could reach the conclusion that the use of the term "NATURALS" on a shampoo label indicates that the product inside is mostly comprised of natural ingredients.

So while this case moves forward, manufacturers and consumers alike are left to ponder its implications. The easy explanation is that judges are often cautious at the motion to dismiss stage, and as the issue of consumer reasonableness is predominantly factual, cases like this should proceed to discovery.

Yet one is left to wonder what, exactly, a manufacturer can say on a label to avoid costly litigation in this area—one that the FDA has not addressed through regulation. Should manufacturers avoid launching products that have words or images depicting, for example, the ocean or waterfalls on the label for fear that the reasonable consumer expects there to be a dab of the Atlantic or the mist of Niagara Falls in the product? Probably not. Indeed, consumers are more product savvy than that.

Recent trends calling for greater disclosure of artificial dyes, flavors, and GMOs are actually a result of a higher level of consumer savviness. Yet there is still a line of case law that expects reasonable consumers to look no further than the front of the box to garner the truth about a product and its ingredients (See, e.g., Williams v. Gerber Prods. Co.). It goes without saying that manufacturers should not deceive consumers through their labels and consumers should get what they pay for. But there must be some balance between thwarting deception and using common sense.

For now, the boundaries for how products can use the term or concept of "natural" will continue to remain fuzzy. Manufacturers seeking to tout "natural" elements of their products should assume that their labels will be closely scrutinized, make their claims carefully, and be able to back them up with substantiation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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