Friday, December 24, 2010

I can't believe it's not pragmatics

Rosen v. Unilever United States, Inc., 2010 WL 4807100 (N.D. Cal.)

Rosen filed a putative class action under California law alleging that Unilever misrepresented the ingredients of “I Can’t Believe It’s Not Butter” by claiming on the package that it’s “Made With A Blend of Nutritious Oils,” when in fact it contains partially hydrogenated oil, which has no nutritional value and is known to cause a number of health problems.

Unilever first argued preemption by the Nutrition Labeling and Education Act ("NLEA") and the dormant commerce clause (first time I’ve seen that in a while). The product’s label states that it has "0g Trans Fat" in compliance with FDA regulations. Rosen responded that the lawsuit wasn’t attacking that statement, but the claims for nutrition and healthiness, including the “blend of nutritious oils” and other claims in ad campaigns such as a claim on Uniliver’s website that "our soft spreads are a better nutrition option than butter because they are made with a blend of nutritious oils, including canola and soybean ...."

These claims weren’t preempted by the NLEA, because they weren’t directed at the trans fat disclosure or at any other label statement regulated by the NLEA.

However, Unilever succeeded on its motion to dismiss for failure to state a claim. The court understood the gravamen of the complaint to be that Unilever’s statements were misleading because they implied that the product contains only nutritious oils. The court found this implausible.

The court took the opportunity to discuss formal logic, which seems to me inappropriate when we’re dealing with ordinary language communication, which does not follow the rules of formal logic. The court described the plaintiff’s proposed syllogism as follows: “For the representation ‘blend of nutritious oils’ to be true, all constituent oils must be nutritious. One of the constituent oils in the product [partially hydrogenated oil] is not nutritious. Therefore, the product representation is false.”

Under Iqbal, the major premise was a mere conclusion that needed to be supported by allegations of fact elsewhere in the complaint, but it wasn’t. Since the plaintiff conceded that some of the oils in the blend were nutritious, he failed to allege any facts to support the conclusion that blending nutritious and non-nutritious oils created a non-nutritious result. (Compare what should have happened in a Lanham Act case: this is an implicit falsehood case, so what if the plaintiff had alleged that a substantial number of reasonable consumers interpreted the claim to mean that all the oils in the blend were nutritious? What if the plaintiff had alleged that it had survey evidence proving this?)

Likewise, the minor premise, that partially hydrogenated oil is not nutritious, lacked supporting factual allegations, and was contrary to federal regulations defining trans fat as a “nutrient” whose quantity is required to appear on food labels, so plaintiff couldn’t truthfully allege that partially hydrogenated oil is not a nutrient. (I don’t think that’s what “nutrient” means for these purposes; there’s a difference between a regulated “nutrient” and something that is in common parlance “nutritious,” the same way that there is a difference between “organic” food and “organic” chemistry.  If I wanted to be snarky, I might suggest that the court was engaging in equivocation.)

Anyway, even if the court assumed that partially hydrogenated oil was not a nutrient, the legal theory was implausible under Iqbal, because of three logical fallacies: petitio principii (begging the question), "fallacy of composition" and the "fallacy of division."

Begging the question is assuming the conclusion one sets forth to prove. Here, plaintiff assumed that, for the representation "blend of nutritious oils" to be true, all constituent oils must be nutritious. The fallacy of composition is taking the properties of a part as indicative of the properties of the whole. But things joined together may have different properties as a whole than they do separately. It does not logically follow that, because one oil in a blend is not nutritious, the blend is not nutritious. The fallacy of division is the opposite: reasoning that what’s true of a whole must be true of its parts. “To reason that since a blend of oils is represented as being nutritious, if partially hydrogenated oil is part of the blend, it must also be nutritious commits the fallacy of division.” (Note that, to the extent that this fallacy is common and fools people, this supports rather than detracts from plaintiff’s claim: people not thinking very hard may reason that if the blend is nutritious then each component is also nutritious.)

Comment: I really want to send the court a book on pragmatics and implicature.  It may well be that the complaint should have been dismissed. But not for these reasons, and not without leave to amend (see below); a consumer reading a label is not a logician looking only for necessary entailments of the claims thereupon. Consider a hypothetical product that was a blend of nutritious oils and cyanide oil. I highly doubt any reasonable English speaker would consider the resulting product “nutritious,” or even to be made with a nutritious blend. The key questions center around whether partially hydrogenated oil is so unhealthy as to make the blend non-nutritious and whether the presence of partially hydrogenated oil is material to consumers.

The court concluded that, even assuming that plaintiff’s allegations about the nature of partially hydrogenated oil were true, the “illogical” relationships plaintiff alleged between those facts and Unilever’s representations rendered the complaint implausible on its face. Because there was no cure for the lack of logical tie, any amendment would be futile.

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