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Why the Rise of Ascertainability Signals the Fall of 'All Natural' Consumer Class Actions
The filing of a consumer class action is a significant event in the life cycle of a consumer product. The widespread publicity such a lawsuit draws often has an immediate adverse impact on the product, its brand, and its manufacturer. Taking control of these class actions early, containing them through appropriate corporate messaging, and ending them quickly at the class certification stage is therefore imperative, particularly in the food and beverage industry, where maintaining consumer trust and confidence is of the utmost importance.
In recent years, numerous consumer class actions have challenged the labeling of food and beverage products as “All Natural,” “100% Natural” or some variant. The phrase “All Natural” has never been defined by the Food & Drug Administration (FDA), and judicial requests to the FDA for guidance on what the term means have been largely ignored. Courts themselves have struggled to define the label. But this quest may be largely academic in light of the recent trend to deny certification in consumer class actions on ascertainability grounds.
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