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34 Rev. Litig. 609 (2015)
Tracing the Evolution of Food Fraud Litigation: Adopting an Ascertainability Standard That Is Natural

handle is hein.journals/rol34 and id is 633 raw text is: Tracing the Evolution of Food Fraud Litigation: Adopting an Ascertainability Standard that is Natural Sarah Valenzuela* I. INTRO DUCTION ....................................................................... 609 II. FDA's CURRENT REGULATION OF FOOD CLAIMS AND THE FIRST W AVE OF LITIGATION ........................................................... 613 A. Introduction: Prohibition of Misbranded Food .............. 613 B. The Nutrition Labeling and Education Act ..................... 615 C. The FDA's All Natural Saga ...................................... 616 D. The First Wave of Litigation: Preemption Issues ....... 619 III. CLASS ACTIONS AND THEIR PURPOSE IN SMALL CONSUMER C LA IM S ................................................................................... 62 1 A. Rule 23 's Class Certification Requirements ................... 621 B. The Purpose of Class Certification: Allowing Smaller Consum er Claim s ............................................................ 623 IV. THE ASCERTAINABILITY REQUIREMENT: AN ANALYSIS OF COURTS' INTERPRETATIONS .................................................... 624 A. The Rationale Behind the Ascertainability Requirement 625 B. Problems with a Stringent Ascertainability Standard .... 633 V. ADOPTING AN ASCERTAINABILITY REQUIREMENT THAT PRESERVES CONSUMER CLASS ACTIONS ................................ 636 V I. C ONCLUSION ........................................................................... 639 I. INTRODUCTION Hazed & Confused, Peanut Butter Fudge, Salted Caramel, and That's My Jam are the new core ice cream flavors that have recently garnered media attention for Ben & Jerry's. But, this new line of ice cream flavors is not the only thing bringing Ben & Jerry's media attention. Not long ago, Ben & Jerry's was undoubtedly Hazed & Confused itself when it was slapped with a lawsuit for its use of the word natural to describe its ice cream. Plaintiffs in a putative class action lawsuit alleged that they * J.D., 2015, The University of Texas School of Law; B.A., 2012, The University of Texas at El Paso. I would like to thank Professor Thomas McGarity for his valuable feedback and guidance on this Note. I would also like to thank everyone on THE REVIEW OF LITIGATION who worked tirelessly to help me improve this Note.

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