Food mislabeling class actions are increasingly common.  Last week, the Northern District of California denied a motion for class certification involving allegations of false labeling on ghee, a clarified butter product, because the plaintiff failed to produce evidence  

Defendant Ancient Organics, a ghee manufacturer, made representations on its packaging that the ghee “is the very best fat one can eat[;] Use this superfood to nourish your mind, body and soul[,]” among other representations.

Plaintiff Kelly Effinger alleged that these and other representations were false and that she had viewed and relied on them to purchase Ancient Organics’s ghee product.  Effinger contended, for example, that the labeling was false and misleading because it “represents to consumers that the fat contained in the [p]roduct is good for them, and thus the [p]roduct is healthy” and “a healthier alternative to the competition,” when the ghee contains purported “dangerously high levels of saturated fat.”  

Effinger filed a motion to certify a nationwide class and a California class.  The Court denied Plaintiff’s motion, finding that evidentiary gaps in the record—and some litigation misconduct by Plaintiff’s counsel—meant Plaintiff had failed to demonstrate numerosity, commonality, and adequacy as required under Fed. R. Civ. P. 23(a).

• Numerosity.  The Court found that Plaintiff had failed to establish numerosity, as she had submitted only incomplete data on Ancient Organics’ sales and no evidence of specific purchases by consumers.  While the Court granted that some “reasonable inferences” could in theory support numerosity, it concluded that “a finding of numerosity here would be founded on nothing more than conjecture devoid of factual support.” 

• Commonality.  The Court next assessed commonality and found that Plaintiff had failed “to proffer any common evidence” reflecting that “a reasonable consumer would have been deceived by the ghee product’s alleged mislabeling.”  The Court found that Plaintiff’s only proffered evidence, a declaration that specified only her own understanding of the labeling in question, failed to “demonstrate that it is probable that a significant portion of the consuming public could be confused by the labeling of Ancient Organics’s products.” The Court also noted that Plaintiff had failed to present any “expert reports or customer surveys” supporting her theory of falsity. 

• Adequacy.  The Court lastly examined whether Plaintiff’s counsel would adequately represent the class, as Rule 23 requires — and concluded that the answer was no.  The Court noted that Plaintiff’s counsel had repeatedly requested eleventh-hour extensions of time and had failed to show good cause to extend deadlines.  Plaintiff’s counsel had also waived discovery objections, attempted to dismiss another named plaintiff’s claims without authorization, and failed to become admitted pro hac vice after more than eight months after first appearing in the case.  The Court concluded that “Plaintiff’s counsel failed to advance the case with the vigor expected of class counsel,” and found adequacy lacking.

The court’s opinion is reported at Kelly Effinger v. Ancient Organics LLC, Case No. 22-cv-03596-AMO, 2025 WL 1489710 (N.D. Cal.).