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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