Class Action Alleging Fraudulent Advertising Erroneously Dismissed Because Consumers not Required to Read Ingredient List to Correct Deceptive Advertising Claims Underlying Class Action Complaint Ninth Circuit Holds
Plaintiffs filed a putative class action against Gerber Products alleging inter alia violations of California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA); specifically, the class action complaint alleged that Gerber’s Fruit Juice Snacks were deceptively marketed because the packaging – which shows images of various fruits “such as oranges, peaches, strawberries, and cherries” – would lead a reasonable consumer to believe that the juices of these fruits were included in the products when in reality “the only juice contained in the product was white grape juice from concentrate.” Williams v. Gerber Products Co., 523 F.3d 934, 936 (9th Cir. 2008). The class action attacked five features of Gerber’s packaging of its fruit juice snacks, including that the product was “nutritious”; defense attorneys moved to dismiss the class action for failure to state a claim, arguing that the packaging, including the ingredient disclosures on the packaging, defeated plaintiffs’ class action claims. Id., at 937. The district court granted the defense motion and dismissed the class action, holding 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. The Ninth Circuit reversed.
The core of the district court’s decision was its finding that Gerber’s packaging was “not likely to deceive a reasonable consumer as a matter of law.” Williams, at 938. It based this decision “solely on its own review of an example of the packaging.” Id., at 939. While California law permits such consideration, as the advertisement itself is “the primary evidence” of its falsity, id. (citation omitted), California courts also hold that “whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer,” id. (citations omitted). Based on its review of the packaging, the Ninth Circuit found “a number of features…which could likely deceive a reasonable consumer.” Id. Most importantly, it held that “reasonable consumers should [not] be expected 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 939-40. The Circuit Court acknowledged that Gerber’s ingredient list “appears to comply with FDA regulations,” but added that “a busy parent walking through the aisles of a grocery store should [not] be expected to verify that the representations on the front of the box are confirmed in the ingredient list.” Id. As the Ninth Circuit explained at page 940, “We do not think that the FDA requires 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.”
In sum, the Ninth Circuit held that whether Gerber’s ingredient list complied with FDA regulations was irrelevant to the inquiry of whether the class action complaint adequately alleged false advertising claims under California law. Williams, at 940. Because the district court erred in finding, as a matter of law, that Gerber’s packaging was not deceptive, the Circuit Court reversed. Id. (The Ninth Circuit included a copy of the allegedly false advertisement as an exhibit to its opinion. See id., at 941.)
NOTE: The Ninth Circuit did not consider the defense argument that the class action claims were preempted by the federal Food Drug and Cosmetic Act (FDCA) because the argument had not been raised below and so was deemed waived. Williams, at 937-38.