New York Court Gets Fresh With Juicemaker

Advertising Law

A New York federal court judge narrowed the scope of a consumer class action brought against Whole Foods and Freshbev over a line of juices marketed as “fresh.”

Gerard Campbell purchased several Freshbev juices at a Whole Foods store, including Ripe Craft Juice 12.2 Northeast Blend Cranberry Apple, Ripe Craft Juice 12 Cranberry Unsweetened and Fresh Juice Pineapple. He alleged he paid a premium for the drinks based on misrepresentations that the juices were unpasteurized, cold-pressed and fresh, and that the cranberry apple juice had more cranberry juice than apple juice.

Ruling on the defendants’ motion to dismiss, U.S. District Court Judge Frederic Block granted it in part while allowing other claims to move forward.

While determining that a plaintiff can maintain standing for injunctive relief where he pleads a future desire to buy the product at issue, the court dismissed Campbell’s claims for injunctive relief, as Campbell made no such claim.

Turning to the substantive issues, the court considered whether federal law preempted the plaintiff’s challenge to the defendant’s labeling. In the case of the “unpasteurized” claim, the court reviewed the Food and Drug Administration’s (FDA) nonbinding guidance for the juice industry, “Juice Hazard Analysis Critical Control Point Hazard and Controls Guidance.” The guidance defines pasteurization as “a heat treatment sufficient to destroy vegetative cells of pathogens,” and as the primary method for preventing pathogen contamination of juice. High pressure processing (HPP) alternatively destroys pathogens via pressure. The court found the guidance, together with other FDA documents, left an open question of fact as to whether any specific “unpasteurized” label is misleading where the product has been treated with an alternative to pasteurization but doesn’t provide additional information to consumers.

“Here, the labels of the Cranberry Apple and Pineapple juices purchased by plaintiff explain that the juices were treated with pressure,” the court wrote. “This provides the consumer with the requisite additional information. Therefore, the ‘unpasteurized’ labels on the juice products are not false or misleading, and plaintiff’s claims regarding this term are preempted.”

However, the Cranberry juice label—which did not explain that the drink was treated with pressure—lacked the necessary additional information, and Campbell’s claims based on that product survived.

The court next rejected the plaintiff’s contention that the “cold-pressed” label was misleading because the juices were treated with HPP after being cold-pressed. “Plaintiff’s claim is implausible,” the court said. “There is no ‘only’ or ‘exclusively’ modifier before ‘cold-pressed’ to indicate that the juice has been subjected to no other process. A reasonable consumer would not mistake the cold-pressed claim to be a claim that pressure was never applied to the juice products.”

Federal regulations govern the use of the word “fresh” on a label, and Judge Block found the defendants’ use of the term could be misleading given that the juices were treated by HPP. “In this context, juice treated with HPP cannot be described as fresh because juice is sold both with and without processing, so the term ‘fresh’ would imply that the juice is unprocessed,” the court wrote. “Whether a reasonable consumer would be misled by the term ‘fresh’ combined with additional language regarding the application of pressure is a question for the factfinder.”

Finally, the court moved Campbell’s challenge to the name “Cranberry Apple” forward. The defendants’ label violated federal regulations because it implied the product has more cranberry juice than apple, and the ingredient statement on the back could not save the product name, the court found.

To read the memorandum and order in Campbell v. Whole Foods, click here.

Why it matters: This is a mixed bag for the defendants. The court’s ruling put an end to some of the plaintiff’s false advertising claims but allowed others based on the labeling of the juice products to move forward.



pursuant to New York DR 2-101(f)

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