Thursday, August 08, 2019

storage container promise of "optimal environment" to keep produce fresh isn't puffery

Zearfoss v. Rubbermaid, Inc., 2019 WL 2902495, No. 18-cv-06392-AB (ASx) (C.D. Cal. Apr. 18, 2019)

Rubbermaid sells a line of food storage containers called FreshWorks Produce Saver Products, advertising on the outside packaging in large bold print “Keeps Produce Fresh Up to 80% LONGER.*” The container displays an assortment of produce including leafy green vegetables, strawberries, and blueberries. The fine print disclaimer in “faint and small typeface” on the bottom center of the label says, “Based on strawberries in FreshWorksTM containers vs. store packaging.” The package also says: “FreshVentTM patented membrane naturally regulates the flow of O2 and CO2 to create the optimal environment so your produce stays farm fresh.” Some products also compare moldy and rotten-looking strawberries, purportedly contained in store-brand packaging, with pristine fresh-looking strawberries, purportedly stored in Rubbermaid containers, for 21 days.

From ad on YouTube

Plaintiffs alleged that, in fact, the products are no better than store packaging.  Rubbermaid’s “up to 80%” claim was allegedly based on its undisclosed standard that, when up to 49% of the strawberries in a container are moldy, spotted, or indented, they are no longer fresh. NAD allegedly raised substantial questions about Rubbermaid’s methodology and concerns over whether consumers would agree that 49% rotten was the standard.  A Consumer Reports test also allegedly found that the Rubbermaid products performed worse than store packaging and another product at keeping raspberries fresh. In addition, despite Rubbermaid’s admission that “there is no single environment that will be the perfect storage environment for all types of produce[,]” it allegedly continued to make the optimal environment claim.  Plaintiffs brought assorted consumer protection claims; this is an evaluation of the amended complaint.

In dismissing the original complaint, the court expressed concern with the absence of any metric to measure freshness. This time, plaintiffs pled that they determined freshness by observing the color, appearance, texture, and smell of the produce, that they promptly transferred produce from store containers to the products, and that the products performed on par with store packaging. Rubbermaid said that wasn’t enough; the court thought it was.  “[T]he external appearance of the produce, its smell, and its edibility” was a reasonable measure of freshness, especially given that Rubbermaid uses a similar metric in its own ads, which depict a shriveling, molding, and dulling strawberry next to a robust, firm, and bright red strawberry. “Above the comparison is the telling sentence: ‘Keeps produce fresh up to 80% longer* - a difference you can see.’” Using not only the same visual cues Rubbermaid relied on but also olfactory cues was sufficient.

Rubbermaid argued that “up to” couldn’t be deceptive to a reasonable consumer, since any reasonable consumer would be on notice that their results may fall short of the maximum performance. But in Maloney v. Verizon Internet Servs., Inc., No. CV 08-1885-SGL (AGRx), 2009 WL 8129871 (C.D. Cal. Oct. 4, 2009), which accepted a similar argument about ads for internet speed “up to 3 Mbps,” defendants’ TOS explained that bandwidth would vary depending on listed customer-specific factors, which Rubbermaid’s ads didn’t.  “Plaintiffs do not allege that they expected each item of produce to stay fresh 80% longer on each use of the Products, rather Plaintiffs allege that it was reasonable for them to expect some produce on some occasions would remain fresh longer than they would have in the store packaging. Plaintiffs allege this was not the case.”  That was reasonable.

Rubbermaid argued that “optimal environment” was puffery. The court disagreed. The packages claimed that a “[p]atented membrane” regulates the flow of O2 and CO2 “to create the optimal environment so [consumers’] produce stays farm fresh.” Though courts have rejected language similar to “optimal” as mere puffery, reasonable consumers could plausibly receive a specific message here, given the reference to the use of a scientific method “to determine how best to ‘naturally regulate’ the flow of natural gasses for produce.”  [It does indeed seem like the kind of thing that people involved in perishable food storage/sales would study and try to control, rather than leaving it up to chance; since it seems reasonable to laypeople that this situation could be scientifically studied, a claim of success shouldn’t be mere puffery.]  However, the “up to 80% longer” and “optimal environment” claims couldn’t support breach of warranty claims; they didn’t have enough of a “concrete, discernable meaning” and there was no allegation that the products were bought for a particular purpose more specific than produce storage.

In addition, Rubbermaid had no independent obligation to disclose its 49% rotten testing standard to the consuming public.

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