A federal judge in Camden, N.J. denied class certification Friday in a suit claiming reality TV star, Bethenny Frankel, falsely promoted her Skinny Girl margaritas as all-natural.
The class can not be certified because the plaintiffs failed to meet the requirement under R. 23(b)(3) for ascertainability of its membership, U.S. District Judge Noel Hillman ruled in Stewart v. Beam Global Spirits & Wine, 11-5149. The lack of objective evidence to verify who bought the defendant’s product would force the court to conduct a “mini-hearing” on the merits of each case, the judge said, and would be unduly burdensome.
Lawyers for the plaintiffs suggested the class could be ascertained through affidavits or attestations submitted by putative class members, but Hillman rejected that method. He agreed with the defendants’ assertions that such a method was self-serving and unreliable and would deprive them of their due process rights.
The suit claims marketing for Skinny Girl Margarita represents it to contain only natural ingredients and no preservatives. Such claims were made on taxi signboards, billboards, on product packaging and in print and online media, the suit alleges.
However, the drink contains sodium benzoate, a chemical preservative. That ingredient can become carcinogenic when mixed with acids such as the lime juice in margaritas, the suit claims. In 2011, retailer Whole Foods announced it was pulling Skinny Girl Margaritas off its shelves because the product includes sodium benzoate, the suit said.
The defendants, in response to those claims, conceded that their product contains “a minute amount” of sodium benzoate and that the product is “permitted for use as a preservative by the U.S. Food and Drug Administration.”
Frankel was a celebrity chef who promoted a healthy lifestyle through cookbook sales, the suit said. She developed Skinny Girl Margaritas, the first in a line of low-calorie cocktails, before selling the business to Beam Global Spirits and Wine in 2011. Frankel appeared in two programs on the Bravo network, “The Real Housewives of New York City,” from 2008-2010, and “Bethenny Ever After” in 2010-2012.
The suit names Frankel; her company, Skinny Girl Cocktails; and Beam Global Spirits and Wine, as defendants.
It brings claims for violation of the New Jersey Consumer Fraud Act and for negligent misrepresentation, breach of contract and unjust enrichment.