Salazar v. Honest Tea, Inc., 2014 WL 2593601, No. 2:13-cv-02318
(E.D. Cal. June 10, 2014)
Salazar alleged that HT’s Honey Green Tea bottles didn’t
contain the amount of antioxidants represented on their labels, where
independent lab testing determined that the bottles contained an average of
186.7 mg of flavonoids per bottle, or 24 percent below the “247 mg Antioxidants
Green Tea Flavonoids Per Bottle” highlighted on the labels. (Previous versions claimed “250mg EGCG2 Super
Antioxidant,” though independent testing showed only 70 mg, and then “Antioxidants
190mg Tea Catechins/Bottle,” though independent testing showed only 119
mg. Salazar alleged that HT changed its
labels but not the formulation.) Salazar
alleged that HT’s “Refreshingly Honest” and “Brutally Honest,” and interactive
campaigns centered on the word “honesty,” made this more deceptive.
Salazar brought the usual California claims. HT argued express preemption, because her
tests didn’t employ the FDA-mandated test protocol for nutrient content
claims. Salazar argued that the FDA
requirements only apply to disclosures in the “Nutrition Facts,” and that HT’s
alleged misrepresentations weren’t “nutrient content claims” subject to the FDA
regulations. The court disagreed.
Under FDA regulations, “compliance with requirements for
nutrient content claims” must be determined by analyzing a sample consisting
“of a composite of 12 subsamples (consumer units), taken 1 from each of 12
different randomly chosen shipping cases, to be representative of a lot.” However, Salazar’s claims were based on (1)
her own independent testing (finding, for example, an average of 70 mg of EGCG,
less than a third of the claimed 250 mg amount, with similar lower-than-claimed
results for catechins and bioflavonoids), (2) a report from ConsumerLab.com
(finding 57.5 mg of EGCG, with similar lower-than-claimed results for
catechins), (3) HT’s own marketing materials referring to supposed independent
tests by Men’s Health Magazine
(finding 71 mg).
The court found that the label statements were nutrient
content claims even if not required to be in Nutrition Facts. Therefore, their
accuracy had to be challenged under the 12-sample test method, which allowed
for some variation in nutrient content of each individual product. The complaint didn’t allege such testing. It
was therefore dismissed with leave to amend.
However, the court did find that Salazar had standing, making
the usual allegations of reliance. But
could she sue for the earlier labels, given that she began buying only in
2012? At this stage, she’d alleged
sufficient similarity between the Honey Green Tea products she bought and those
she didn’t. The formulation was identical from 2008-2013, and all the variants
related to the advertised antioxidant content.
Material differences, if any, were better addressed at the class
certification stage.
HT argued that claims based on the “Honest Tea” name; its “Refreshingly
Honest” and “Brutally Honest” taglines; or its “just a tad sweet” and “a kiss
of honey, but not enough to gross you out” statements should be dismissed
because they are non-actionable puffery. Salazar argued that she believed them,
as a reasonable consumer would. While
nonspecific, nonmeasurable assertions are puffery, some courts have found
“honesty” to be actionable. See, e.g.,
Richman v. Goldman Sachs Grp., Inc., 868 F.Supp.2d 261, 277 n. 8 (S.D.N.Y.2012)
(“If Goldman’s claims of ‘honesty’ and ‘integrity’ are simply puffery, the
world of finance may be in more trouble than we recognize.”). The honey-related statements were more
blatant puffery:
It is unclear how one could verify
whether the level of honey in defendant’s product qualifies as a “kiss” and is
“not enough to gross you out.” A “tad” and a “kiss” are vague and non-specific
terms that lack any clear, objective indication of their levels. “Not enough to
gross you out” is inherently subjective; two different consumers may have different
tolerance levels to the honey.
Thus, the claims were dismissed with prejudice insofar as
they relied on honey-related statements.
But “honesty” required more analysis. The term’s frequent use in trademarks was “suggestive
of its hyperbolic, generalized nature.”
HT’s use of “honest” was similar to non-actionable claims for “reliability”
and “authentic[ity]” in other commercial product cases. “Adding the terms
‘refreshingly’ and ‘brutally’ to ‘honest’ in the tagline may appeal to
consumers but may not substantively contribute to notions of honesty.” On the other hand, “honest” might imply
claims to provide only truthful information, and truthfulness can be
measured.
“Honest Tea” by itself also had a “concrete message.” HT’s ad campaigns included a website posting,
“Honest Tea: If it’s not real, it’s not Honest”; re-styling of the label to
accentuate the word “Honest”; a billboard campaign of truths such as “YES, THAT
DRESS DOES MAKE YOU LOOK FAT, BE REAL. GET HONEST” and “IT’S NOT ME IT’S YOU,
BE REAL. GET HONEST”; and a National
Honesty Index social experiment measuring compliance with an honor system
across cities. As alleged, “defendant sets out to paint itself as honest and
bases virtually its entire product image on that characteristic. These claims
are not mere puffery.”
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