In September, the Ninth Circuit heard oral argument on two cases involving class action member certification in GMO-food labeling suits. The merits of both cases tackled the meaning of “all natural” labeling. A core question was whether “all natural” labels are misleading for foods with added oils or synthetically enhanced acids, even if such substances can naturally occur in such foods. The Food and Drug Administration is considering a more formal definition for “all natural” food labeling, but it is unclear when that policy will emerge. The larger impact of these two cases, however, may be its influence on class action certification going forward in the Ninth Circuit.

Arguments in Briseno v. ConAgra Foods Inc. focused on whether self-identification would suffice to show class membership under the relevant rules. The judges pressed ConAgra Foods Inc.’s attorney on why self-identification affidavits would not be enough. While it appeared the judges sided with the plaintiffs on that issue, the judges raised concerns about the plaintiffs’ hybrid damages method. Inability to connect class-wide damages to a product label statement has hindered would-be class action suits in the past.

In Brazil v. Dole Packaged Foods LLC, the plaintiffs sought reversal of a district court’s summary judgment ruling in favor of Dole and decertification of the plaintiffs’ damages class. The court appeared skeptical with whether the plaintiffs have standing to claim that the food label was illegal under California consumer law. Both parties agreed that the court should not wait for the official FDA policy on the meaning of “natural” food and drink labels. Dole argued that it would be improper to reverse the district court’s ruling on the basis that FDA policies may change sometime in the future. The Ninth Circuit ultimately affirmed the class decertification but reversed the summary judgment order in favor of the named plaintiff, by relying in part on nonbinding FDA guidance and letters.

This mixed ruling from Brazil and the oral argument in both Ninth Circuit cases illustrate the tension with courts not wanting to disturb current class action certification principles and attempting to address the ambiguity in unsettled food labeling policies. Until national GMO-food labeling policies are more concretely defined, the Ninth Circuit will likely continue to employ a case-by-case analysis on class action certification for related lawsuits. Companies in the food industry should adequately scrutinize their decisions in including the label “all natural” on their products with so much still up in the air.