Tuesday, March 12, 2013

"Brain development" claims get further chance to develop

Chavez v. Nestle USA, Inc., 2013 WL 857599 (9th Cir.)

The court affirmed the dismissal of UCL/FAL claims based on Nestle’s Juicy Juice Immunity, finding “nothing false, deceptive, or misleading” about the challenged materials, but revived claims based on Juicy Juice Brain Development.  Plaintiffs adequately pled that members of the public were likely to be deceived by the labels and ads, including the name of the product; they pled their reliance; and they alleged that the product actually contained very small amounts of the touted ingredient, DHA. They then pled that “in order to obtain enough DHA from the Juicy Juice to promote potential brain development, young children need to consume an impractical and extremely high quantity of juice—more than a bottle's worth each day.” These allegations, along with allegations of lost money, were sufficient.  The primary jurisdiction doctrine was not an alternative basis for dismissal, since the claims didn’t necessarily implicate primary jurisdiction, “and the FDA has shown virtually no interest in regulating DHA in this context.”

Judge Kleinfeld dissented and would have affirmed the dismissal in its entirety.  He found the pleadings conclusory, especially given Rule 9(b).  The complaint didn’t suggest that anything in Juicy Juice was bad for children’s brain development, just that the scientific evidence was mixed about whether there was a benefit.  Private plaintiffs can’t demand substantiation, and nothing in the ads said that all a child needed was a few ounces of Juicy Juice a day; instead, they said the opposite: “Juicy Juice Brain Development ... [is an] additional resource for parents to incorporate much needed nutrients into their child's diet.”  It wasn’t plausible for any reasonable person to understand the ads to mean that all a child needs is Juicy Juice.  “When a child's mother tells him to eat his broccoli because it is good for him, she is not misleading the child, even though eating only broccoli and nothing else would probably be bad for the child.”  Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008), was not to the contrary, because in Gerber, Gerber showed pictures of several different fruits along with the phrase “fruit juice” on the package, which “could likely deceive a reasonable consumer” into thinking that the fruits in the picture were also in the snack, even though most of the depicted fruits weren’t.  Here, the plaintiffs didn’t dispute that the juice contained 16 milligrams of DHA, as Nestle claimed.

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