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The law of Ben & Jerry's and natural beans

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Opinion Zone,David Horrigan

Have you ever wondered just what “all natural” means?  There was once a professor who reminded his students that the bubonic plague was “all natural.”  Various merchants—from sellers of cereal to purveyors of popcorn—claim their products are “all natural.”  Ben & Jerry’s claimed its ice cream was all natural, but the Center for Science in the Public Interest didn’t agree, so they got someone to sue Ben & Jerry’s. 

So, we can attempt to discover once and for all just what “all natural” means, the tale of Chubby Hubby, Chunky Monkey, and Cherry Garcia defending their honor gets to be this week’s Case of the Week.

Activist ice cream

In the 1970s, childhood friends Ben Cohen and Jerry Greenfield took a correspondence course in ice cream making.  Then they scraped up $12,000, opened an ice cream shop in an old Vermont gas station, and delivered dairy products in a station wagon.  Ben & Jerry’s Homemade Inc. was born, and, as they say, the rest is history.

Ben & Jerry’s expanded quickly.  Not only was the company known for its tasty ice cream with imaginative names, Ben & Jerry’s became known as a leader in social and environmental activism.  The growing company tried to promote world peace, and—from green dairy farms to recycled supplies—Ben & Jerry’s made environmental stewardship a focal point of its operations.  In addition, Ben & Jerry’s donated 7.5 percent of the company’s pre-tax profits to charity through the Ben & Jerry’s Foundation.  In 2000, Ben and Jerry sold the company to Unilever.  

Although they are now very rich dudes, Messrs. Cohen and Greenfield and their ice cream operation still conjure up images of granola, Birkenstocks, peace signs, and…well...things that are all natural.  Of course, the labels of Ben & Jerry’s ice cream read “all natural,” too.  Some people didn’t think it was natural enough.

Dutch chocolate

Although Amsterdam may be more famous for Rembrandt, the Rijksmuseum, and reefers, some people believe the Netherlands is also famous for Dutch chocolate.  But, does anyone really know what Dutch chocolate is?  Hint: it’s a little more complicated than just being made near The Hague.

Chocolate is produced when seeds from cocoa beans are fermented and dried and mixed with fat and powdered sugar.  Cocoa powder can be made in two forms: unalkalized cocoa or Dutch-process alkalized cocoa.  The unalkalized cocoa is made by merely pressing the beans.  The process produces a light brown, very acidic powder.

Dutch-process cocoa, on the other hand, is produced by cocoa nibs with a mild alkali solution to raise the pH and thus, lower the acidity.  This process improves taste, color and solubility, but it also destroys many of the flavonols, which are believed to have health benefits.  Ben & Jerry's used the Dutch alkanization process.

All Natural?

The Center for Science in the Public Interest (CSPI) doesn’t think alkanized cocoa is all natural, so it contacted Unilever, demanding that the company remove the words “all natural” from both Ben & Jerry’s and Breyers ice cream, another brand the company owns.  Ben & Jerry’s agreed to remove the phrase, “all natural,” from any products containing alkanized cocoa.  Breyers did not.

CSPI organized a class action with the ice cream-enjoying Skye Astiana as lead plaintiff of a band of ice cream eaters who hate the allegedly unnatural Dutch chocolate, and sued Ben & Jerry's in the U.S. District Court for the Northern District of California in Astiana v. Ben & Jerry's Homemade Inc.  They alleged violation of both federal and California law in the labeling of the ice cream as “all natural” even though its cocoa contained potassium carbonate from the alkanization process.

Specifically, the CSPI plaintiffs argued Ben & Jerry’s committed fraud and engaged in false advertising in violation of California Business & Professions Code § 17500.  In addition, CPSI claimed Ben & Jerry’s violated regulations promulgated by the federal Food and Drug Administration (FDA).

Ben & Jerry’s filed a motion to dismiss the case, making numerous arguments, including debating the definition of “all natural.”

The ice cream makers argued that “all natural” was a term of art under FDA and U.S. Department of Agriculture (USDA) regulations.  Thus, Ben & Jerry argued, for the CSPI plaintiffs to have been deceived by the “all natural” packaging, they would have had to have possessed an intimate familiarity with the FDA’s “natural” policy as well as the USDA’s regulations about what constitutes a synthetic process.

Ben & Jerry’s was taking the position that Ms. Astiana was merely an ice cream lover and not a federal regulatory expert.

In addition, Ben & Jerry’s argued a prospective class plaintiff would have had to taken that extensive regulatory knowledge, then actually have seen the “all natural” phrase on the package, and then made her own analysis that the ice cream was either not alkanized or that the alkali used in the Dutch cocoa process was not “synthetic” under the USDA regulations. 

After all that, under Ben & Jerry’s argument, the potential plaintiff would have had to have relied on that regulatory analysis in deciding to enjoy that pint of Chubby Hubby.  Ben & Jerry’s argued that when the reasonable consumer bought her Chunky Monkey, she was not assuming “all natural” meant alkanized with sodium carbonate and not potassium carbonate.

The court wasn’t buying it…at least not for now.

The court denied Ben & Jerry’s motion to dismiss, holding that the dispute was too fact-dependent to be thrown out at this point.

“Moreover, the fundamental dispute—what is a ‘natural’ product—will likely present some factual disputes. The only FDA guidance appears to be a distinction between ‘natural’ and ‘synthetic’ in the ‘policy,’ but that definition in the Federal Register is qualified as meaning something that would ‘not normally be expected to be in food.’ Surely, that characterization raises multiple linguistic and philosophical questions, not to mention factual questions,” U.S. District Judge Phyllis Hamilton wrote for the court.

So the battle between Ben & Jerry’s and the enemies of Dutch chocolate will continue.  What have we learned this week?  Well, according to the U.S. District Court for the Northern District of California, there really isn’t any definition of “all natural”…at least for the moment.

David Horrigan is a Washington, DC, attorney, analyst at The 451 Group, editorial director at courtweek.com, and former staff reporter and assistant editor at The National Law Journal.  His articles have appeared also in Law Technology News, The American Lawyer, The New York Law Journal, Corporate Counsel, Texas Lawyer, Florida Lawyer, and Daily Business Review. E-Mail: dhorrigan@courtweek.com

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