Bottles of Tropicana orange juice on a supermarket shelf. Image by Shutterstock.

A federal judge has denied a motion for class certification in a long-running suit claiming Tropicana orange juice is deceptively marketed with phrases such as “natural,” “100% pure” and “grove to glass.”

Plaintiffs lawyers sought certification of classes of consumers who had bought Tropicana orange juice at Costco warehouse clubs in California and New York. That proposal was aimed at correcting deficiencies identified by the court in an earlier opinion denying class certification.

But U.S. District Judge William Martini found that the sole remaining plaintiff, Angelena Lewis, a California resident, could not adequately represent the New York class because there is no evidence she bought the product in a Costco store in that state. And Martini refused to grant leave to amend the complaint with a New York plaintiff.

Martini also ruled that the suit failed to meet the requirement under R. 23(b)(3) of the Federal Rules of Civil Procedure that issues common to the class should predominate over individual issues. He cited the many different package designs used at various times for Tropicana orange juice, bearing terms such as “fresh,” “grove,” “natural,” “pure” and “100% orange juice.”

“Plaintiff has not demonstrated that a uniform misrepresentation was made to the class sufficient to satisfy predominance” as to the terms and phrases in dispute, Martini said. “The Court would be required to perform an individualized inquiry into each product purchased to determine what combinations of labels were visible before determining whether that combination is deceiving to a reasonable consumer. These variations are the poster child for lack of predominance,” Martini wrote.

Martini also said the plaintiffs failed the ascertainability test based on the same variations in label language. While Costco can provide a list of items purchased by a member going back to 2000, its records would not show which of those disputed terms and phrases would have been seen by consumers buying Tropicana juice, said Martini.

In addition. the plaintiff's claims based on the term “pasteurized” fail to meet the predominance standard as to materiality, Martini said. A representation is material if a reasonable consumer would attach importance to its existence or nonexistence in determining which product to buy, Martini said. The record of materiality of pasteurized orange juice is “sparse at best,” Martini said.

Plaintiff Lewis testified that she knew Tropicana orange juice was pasteurized but she did not says that the term “pasteurized” influenced her decision to buy Tropicana or mislead her as to how it was processed. Nor does the record reflect any evidence that the pasteurized label misled a reasonable consumer, Martini said. Because the plaintiff did not show materiality as to the pasteurized label, she has not demonstrated that common issues predominate over individual ones as to that term, Martini said.

The litigation says terms such as ”100 percent pure and natural” mislead consumers about Tropicana, which they say is scientifically engineered in laboratories, is processed and contains coloring and flavoring.

The first New Jersey suit over Tropicana sales and marketing practices was filed in 2011 on behalf of a nationwide class of consumers. The Judicial Panel on Multidistrict Litigation consolidated cases from around the country in New Jersey in 2012.

Martini denied class certification for the first time in September 2016, citing a discovery dispute that needed to be resolved before other motions could be decided. Then, in January 2018, the judge denied a motion for class certification based on purchases of Tropicana from supermarkets or warehouse clubs in California, New York and Wisconsin. In that ruling, Martini said individual issues predominated over common ones when it came to proving the plaintiffs' claims for unjust enrichment, breach of express warranty and violations of the New Jersey Consumer Fraud Act.

Lucas Townsend of Gibson, Dunn & Crutcher in Washington, representing Tropicana, declined to comment on the ruling. Another lawyer also representing Tropicana, Liza Walsh of Walsh Pizzi, O'Reilly Falanga in Newark, did not return calls about the ruling.

James Cecchi of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland and Scott George of Seeger Weiss in New York, who represent the plaintiffs, also did not return calls.