Wednesday, April 23, 2008

Fruit Juice Snacks neither fruity nor snacky

Williams v. Gerber Products Co., -- F.3d --, 2008 WL 1776522 (9th Cir.)

District court opinon discussed here. The Center for Science in the Public Interest identified Gerber’s “Fruit Juice Snacks” for toddlers as highly misleading. The package showed pictures of oranges, cherries, and strawberries, but the leading ingredients are corn syrup and sugar. Appellants, parents of small children, brought a putative class action against Gerber for deceptive advertising, and the district court granted Gerber’s motion to dismiss.

Appellants alleged that they bought the Fruit Juice Snacks because they sought healthy snacks for their toddlers and because they trusted the Gerber name. They argued that (1) the use of “Fruit Juice” along with images of oranges, peaches, strawberries and cheries was deceptive because the only fruit juice in the product was white grape juice from concentrate; (2) the statement on the side panel that the product was made “with real fruit juice and other all natural ingredients” was deceptive because the two most prominent ingredients were corn syrup and sugar; (3) the statement that the snacks were “nutritious” was deceptive; (4) the label “snacks” instead of “candy,” “sweet,” or “treat” was wrong; (5) the phrase “naturally flavored” violated applicable type size requirements. After the complaint was filed, Gerber took out “and other all natural ingredients”; removed “nutritious”; and changed “Snacks” to “Treats.”

The district court granted Gerber’s motion to dismiss on the grounds that the statements couldn’t deceive a reasonable consumer, especially given that the ingredients are on the side of the box, and because “nutritious” was puffery. The court of appeals reversed.

The court of appeals refused to consider Gerber’s preemption argument, because it wasn’t raised to the district court and nothing in the complaint suggested that plaintiffs were attempting to enforce the FDCA.

Under Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), plaintiffs can survive a motion to dismiss by pleading enough facts to state a claim to relief that’s plausible on its face, not merely speculative. Here, the district court relied on its own review of the packaging. Though the primary evidence in a false advertising case is the ads themselves, the deceptiveness of a business practice is usually a factual question unsuitable for resolution on a motion to dismiss. This case is not the rare exception.

Specifically, calling the product “fruit juice snacks” and showing a number of different fruits on the package potentially falsely suggests that those fruits or their juices are in the product. (“Potentially,” yeah.) The “fruit juice and other all natural ingredients” statement “could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false.” Moreover, the statement that the product was “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” added to the potential deception.

While “nutritious” on its own would arguably be puffery—nutritiousness can be “difficult to measure concretely—it is not on its own, but in the context of the packaging as a whole. The court of appeals declined to give Gerber the benefit of the doubt on a motion to dismiss, given that it’s not hard to advertise truthfully.

The district court reasoned that a reasonable consumer, reviewing the package as a whole, wouldn’t conclude that the product contained actual juice from the fruits displayed on the front of the package, given that the ingredients are listed. The court of appeals disagreed that “reasonable consumers should 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.” True, the ingredient list is useful and complies with FDA regulations. But “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.” Rather, reasonable consumers “expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.” The ingredient list isn’t a liability shield for misleading statements elsewhere on the package.

Side note: The California AG’s amicus brief emphasized that photorealistic pictures of fruit on a package, without more, can convey the message that the package contains real fruit, even if no words are used. The AG also argued that there would be no preemption by the FDCA. For an explanation of the basic anti-preemption argument, see here.

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