District Court Erred in Dismissing Class Action Complaint Alleging that Packaging of Toddler “Fruit Juice Snacks” was Deceptive and Misleading because Reasonable Consumer is not Required to Read Ingredient List to Correct Misimpressions given by Balance of Packaging Ninth Circuit Holds
Plaintiffs filed a class action against Gerber Products alleging that it deceptively marketed its toddler “Fruit Juice Snacks”; the 8-count class action complaint “challenged five features of the packaging used by Gerber to sell its Fruit Juice Snacks” (summarized in the Note, below). Williams v. Gerber Products Co., ___ F.3d ___ (9th Cir. December 22, 2008) [Slip Opn., at 16633]. Defense attorneys moved to dismiss the class action under Rule 12(b)(6); the district court granted the motion and dismissed the class action because it “found that Gerber’s statements were not likely to deceive a reasonable consumer, particularly given that the ingredient list was printed on the side of the box and that the ‘nutritious’ claim was non-actionable puffery.” Id., at 16634. The Ninth Circuit reversed.
The Ninth Circuit focused on whether plaintiffs had stated claims under California’s Unfair Competition Law (UCL), which includes false advertising claims, and California’s Consumer Legal Remedies Act (CLRA), noting that these claims “are governed by the ‘reasonable consumer’ test,” which requires plaintiffs to show that members of the public are likely to be deceived by Gerber’s packaging. Williams, at 16637 (citations omitted). Under California law, the advertising need not be “false” – it is sufficient if it is either “actually misleading” or if it is likely to deceive or confuse the public. Id. (citation omitted). The district court dismissed the class action because it found as a matter of law, based “solely on its own review of an example of the packaging,” that the packaging was not likely to deceive the public. Id., at 16637-38.The Circuit Court explained, however, that California courts generally leave such determinations to the trier of fact, id., at 16638 (citations omitted). And while it is true that orders granting motions to dismiss UCL claims “have occasionally been upheld,” those situations are “rare” and this case did not present such a “rare situation.” Id. The Court explained at page 16638 and 16639:
Here, there are a number of features of the packaging Gerber used for its Fruit Juice Snacks product which could likely deceive a reasonable consumer. The product is called “fruit juice snacks” and the packaging pictures a number of different fruits, potentially suggesting (falsely) that those fruits or their juices are contained in the product. Further, the statement that Fruit Juice Snacks was made with “fruit juice and other all natural ingredients” could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false. And finally, the claim that Snacks is “just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy” adds to the potential deception.
Moreover, the Ninth Circuit rejected the district court’s reasoning that a reasonable consumer would read the ingredients list rather than relying on the pictures and representations on the front of the box. Williams, at 16639. While “[t]he ingredient list on the side of the box appears to comply with FDA regulations and certainly serves some purpose,” the Circuit Court reasoned that the FDA does not “require an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception.” Id. The Ninth Circuit therefore held that “given the opportunity” the plaintiffs “could plausibly prove that a reasonable consumer would be deceived by the Snacks packaging,” Id., at 16640. Accordingly, the Ninth Circuit reversed the district court order holding that Gerber’s packaging was not deceptive as a matter of law, reinstating the class action complaint. Id., at 16640-41.
NOTE: The five aspects of the Gerber packaging challenged by the class action were summarized by the Ninth Circuit at page 16634 as follows: “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.”