Why the Rise of Ascertainability Signals the Fall of 'All Natural' Consumer Class Actions

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.

Ascertainability is an essential prerequisite to maintaining a Rule 23 class action. See, e.g., Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 592-94 (3d Cir. 2012); Little v. T-Mobile USA, Inc., 691 F.3d 1302 (11th Cir. 2012); John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007); In re Initial Pub. Offerings Sec. Litig. , 471 F.3d 24, 30 (2d Cir. 2006); Crosby v. Social Sec. Admin.of the U.S., 796 F.2d 576, 580 (1st Cir. 1986). It means that the proposed class must be “currently and readily ascertainable based on objective criteria.” Marcus, 687 F.3d at 593. It requires that the plaintiff demonstrate at the class certification stage that some reliable, administratively feasible way of identifying class members exists. Carrera v. Bayer Corp., 727 F.3d 300, 307-08 (3d Cir. 2013). The process proposed must be “manageable” and must “not require much, if any, individual fact inquiry.” Id. In other words “[i]f class members are impossible to identify without extensive and individualized fact-finding or 'mini-trials,' then a class action is inappropriate.” Id. at 305; see Marcus, 687 F.3d at 593.