Class Action Alleging False Advertising Claims Improperly Dismissed because Factual Questions Existed as to Whether Statements were Deceptive and because Accuracy of Ingredient List did not Insulate Defendant from Liability Based on Misleading Nature of Statements on Front of Product Box Ninth Circuit Holds
Plaintiffs filed a putative class action against Gerber Products Company alleging, inter alia, violations of California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA); the class action complaint claimed that Gerber “deceptively marketed” its “Fruit Juice Snacks,” which are part of Gerber’s “Graduates for Toddlers” line of products. Williams v. Gerber Products Co., 523 F.3d 934, 936 (9th Cir. 2008). Defense attorneys moved to dismiss the class action, id. The district court granted the defense motion and dismissed the class action complaint; the court reasoned that the challenged statements “were not likely to deceive a reasonable consumer,” id., at 937. The Ninth Circuit reversed.
The Ninth Circuit summarized the class action claims at pages 936 an 937 as follows:
Appellants challenged five features of the packaging used by Gerber to sell its Fruit Juice Snacks. First, Appellants challenged the use of the words “Fruit Juice” juxtaposed alongside images of fruits such as oranges, peaches, strawberries, and cherries. Appellants contended that this juxtaposition was deceptive because the product contained no fruit juice from any of the fruits pictured on the packaging and because the only juice contained in the product was white grape juice from concentrate. Second, Appellants challenged a statement on the side panel of the packaging describing the product as made “with real fruit juice and other all natural ingredients,” even though the two most prominent ingredients were corn syrup and sugar. Third, Appellants challenged a separate statement on the side panel; namely, that Snacks was “one of a variety of nutritious Gerber Graduates foods and juices.” Fourth, Appellants challenged Gerber’s decision to label the product a “snack” instead of a “candy,” “sweet,” or a “treat.” Finally, Appellants alleged that the phrase “naturally flavored” did not comply with applicable type size requirements.
In finding that these statements would not deceive a reasonable consumer, the district court reasoned in part that Gerber printed the ingredient list on the side of each box, and that use of the word “nutritious” was mere puffery. Id., at 937.
The parties agreed that the statements challenged in plaintiffs’ class action complaint were measured against a “reasonable consumer” standard. Williams, at 938. The Ninth Circuit also explained that California law prohibits “‘“not only advertising which is false, but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.”’” Id. (citations omitted). The circuit court also noted that under California law “whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer.” Id., at 939 (citations omitted). Based on its review of the packaging, the Circuit Court concluded that it was inappropriate to grant the defense motion to dismiss. The Court explained at page 939 that “there are a number of features of the packaging Gerber used for its Fruit Juice Snacks product which could likely deceive a reasonable consumer.” In pertinent part, the Ninth Circuit held that a consumer should not be required “to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.” Id., at 940.
NOTE: The Ninth Circuit did not address defendant’s claim that the class action claims were preempted by the Federal Food Drug and Cosmetic Act because it had not been raised below. See Williams, at 938-38.