Judge dismisses majority of claims in class action lawsuit due to implausible assertions by plaintiff. (subscription to Law360 required)

• As the food industry is well aware, the “Food Court” (i.e., the Northern District of California) handles a significant amount of litigation related to “natural” claims and other food marketing and advertising issues.  In one recent example, Whole Foods is facing a proposed class action lawsuit premised on allegedly misleading “natural” claims.  The plaintiff also accused Whole Foods of misleadingly using the term “evaporated cane juice” (ECJ) to make products containing an added sugar seem healthier.
• Citing implausible assertions by the plaintiff, the judge now has dismissed all claims related to ECJ.  Specifically, the judge criticized the plaintiff’s assertions that:  (1) he was unaware that ECJ was a sweetener; (2) he believed ECJ was healthy because the “j” stands for “juice”; and (3) he knew ECJ was a sweetener (inconsistent with the first assertion), but thought it was a type of “healthy unrefined sugar.”  According to the judge, none of these theories was “well-pled or plausible under the ‘reasonable consumer’ test.”  Particularly since the plaintiff was a self-styled “health conscious consumer who wished to avoid ‘added sugars,'” the judge found the inconsistencies in his statements and actions sufficient enough to warrant dismissal of the claims.
• Although the “natural” claim challenge still survives, this partial dismissal indicates the court’s analysis of the reasonableness, consistency, and plausibility of a plaintiff’s assertions under the circumstances.  As was the case with “serial plaintiffs,” perhaps self-styled “health conscious” plaintiffs will find less sympathy from the bench when their purchasing decisions are inconsistent with their professed lifestyle choices.