multiplicity of products and labels makes class unascertainable

Bruton v. Gerber Products Co., No. 12-CV-02412, 2014 WL 2860995 (N.D. Cal. June 23, 2014)
Bruton brought the usual California claims against Gerber for mislabeling certain food products intended for children under 2. She challenged Gerber’s nutrient content claims and failure to label certain products labeled with a “No Added Sugar” or “No Added Refined Sugar” with a disclosure statement warning of the high caloric value of the products.  The court denied class certification on ascertainability grounds.
A class is ascertainable if it is defined by “objective criteria” and if it is “administratively feasible” to determine whether a particular individual is a member of the class.  Bruton proposed to certify a class of buyers of foods within Gerber’s “2nd Foods” category.  There were seven product sub-categories and multiple flavors within each sub-category.  In total, of the 93 varieties of baby food available in the 2nd Foods product category, 69 products were part of the proposed class.
The court first rejected Gerber’s argument that the class was unascertainable because Gerber doesn’t track who buys its products.  That may be the law of the Third Circuit, but not the Ninth. See Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) (rejecting affidavits from class members as means of identification where defendant kept no purchase records). “In this Circuit, it is enough that the class definition describes a set of common characteristics sufficient to allow a prospective plaintiff to identify himself or herself as having a right to recover based on the description.”
However, labeling variation proved a fatal flaw. Gerber sold multiple versions of the same products during the class period. Most, if not all, consumers likely discarded the product packaging, forcing them to rely on memory alone, and it was too much to ask them to remember not just whether they bought 2nd Foods products within the class period, but what the flavors and labels were.
Of the 69 products at issue, 66 were labeled both with and without challenged labels during the class period.  Because of production and distribution realities, “a new label produced by Gerber may appear for sale on a store shelf anywhere between three and thirteen months after the new label is approved.” Gerber submitted evidence that at some times during the class period, there were two different labels simultaneously for sale in one store ,”such that on a given day one consumer may have purchased a product with a challenged label statement while another purchaser of the same product did not.” The court—Judge Koh—had recently certified other consumer classes, where all products in the class definition contained the allegedly problematic statements throughout the class period, but this was different.
While self-identification with affidavits can be enough for ascertainability, sometimes it isn’t.  In a case seeking certification of a class of consumers who had smoked twenty “Pack–Years,” or at least 146,000, Marlboro cigarettes over the class period, which spanned several decades, the court reasoned that this asked too much of class members’ prospective members’ memories. “Swearing ‘I smoked 146,000 Marlboro cigarettes’ is categorically different from swearing ‘I have been to Paris, France,’ or ‘I am Jewish,’ or even ‘I was within ten miles of the toxic explosion on the day it happened.’”  Likewise, another food case involving multiple products and labels was found unascertainable because the defendant “produced and sold multiple versions of each of the contested product labels during the class period, some bearing the allegedly misleading statements and others not.”  Consumers would have difficulty remembering whether or not they bought a product with an allegedly misleading label statement.
So too here.  Identifying class membership required consumers to remember whether they purchased a 2nd Foods product in a qualifying flavor; whether the product was in the appropriate packaging; and whether the product was labeled with a challenged label statement. But because Gerber sold more flavors of 2ndfoods than included in the class definition, and because Gerber’s flavors were very similar in name, it was likely that consumers would have difficulty remembering whether or not they purchased a qualifying product. (For example, Apples and Bananas with Mixed Cereal or Apples and Cherries flavors were included, but Apple Peach Squash, Apple Berry with Mixed Cereal, and Apples and Chicken flavors were not.)
The multiple different labels further complicated the issue.  “Nearly all of the Gerber 2nd Foods products included in the class definition did not contain any challenged label statements during a portion of the class period.” Some of the labels were changed to remove challenged statements; some statements were moved from the front of the package to less prominent places.  The Apples and Cherries flavor, for example, had six different labels during the class period, one with a challenged statement on the top, five with challenged statements on the top and front, and one with no challenged statements.  That made accurate recall even less likely.
In sum: “[t]he number of products at issue in this case, the varieties included and not included in the class definition, the changes in product labeling throughout the class period, the varied and uncertain length of time it takes for products with new labels to appear on store shelves, and the fact that the same products were sold with and without the challenged label statements simultaneously make Plaintiff’s proposed class identification method administratively unfeasible.” Under these circumstances, affidavits would be unreliable, especially since Bruton sought money damages and the availability thereof might “encourage consumers to submit affidavits even though they cannot remember which products they purchased.”
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