Monday, September 16, 2019

Not worth a hill of beans: can label showing mound of beans plausibly misleads

Beckman v. Arizona Canning Co., 2019 WL 4277393, No. 16-cv-02792-JAH-BLM (S.D. Cal. Sept. 9, 2019)

If the can shows lots of whole, plump beans, but the ingredients list puts water first, is there a plausible deception claim? The court here answers yes. “Unlike the image advertised on the principal display panel, consumers receive mostly water, with a portion of beans fully submerged and undetectable at first sight.” Plaintiffs brought the usual California claims.
can with beans

website showing can labels

Actual contents, per pleading
Arizona Canning argued that, of about 361 bean products listed by the USDA branded food products database, which contains information provided voluntarily by food producers, at least 15 bean products list water as a primary ingredient. But that couldn’t be taken to show the existence of an industry standard, which was a factual dispute.

“Based on an informal survey, Plaintiffs allege that when consumers were asked to look at a can of Defendant’s Sun Vista Beans, each consumer expressed a belief that the can was predominantly filled with beans.”  Arizona Canning argued that it was unreasonable to look at the picture to determine the ingredients, instead of the ingredients label. Williams v. Gerber Product Co., 552 F.3d 934 (9th Cir. 2008), is a problem for that argument, and plaintiffs alleged that because Sun Vista Beans are sold in opaque canned containers, consumers depend upon the product advertisement, label, and the fill of the can to conduct product comparisons and make purchasing decisions.

The court began with the proposition that “images can reasonably be interpreted to have various meanings.” Context, “judicial experience’ and “common sense” all play roles in whether a misleadingness claim is plausible. Here, the plausible meanings of the image of cooked beans is either: (1) identifying the type of bean being sold or (2) depicting the can’s contents. In this specific context, the dehydrated beans in the background and the placement of the bowl of hydrated beans in the forefront of the image supported (2), and so did comparing the image of this product with Arizona Canning’s other bean product - pinto beans with jalapenos - which showed chopped jalapenos sprinkled throughout the bowl of beans. 

Arizona Canning argued that the image was “a picture of beans as they are suggested for serving.” “While this interpretation seems reasonable, it is contrary to the detailed information offered within the nutrition fact panel, which indicates the primary ingredient is water. For this ‘suggestion’ to be accepted, consumers must drain more than half of the can’s contents – leaving the consumer with either a smaller serving size or significantly less servings than represented.”

Unlike the products in other image cases, “beans are not made up of various heterogenous ingredients.” Thus, a consumer “could reasonably believe that a can labeled ‘pinto beans,’ with no additional descriptor, is primarily filled with just that.”

Plaintiffs also alleged that the net weight, serving size, and number of servings per container were deceptive because, for example, a 29 oz. can of Sun Vista whole pinto beans advertised “about 6 servings.” The label also defined a serving as one half cup, or 4 oz., which a consumer would think meant that the can contained 24 oz. beans and 5 oz. water. But that contradicted the ingredient label. “It is not plausible that a reasonable consumer would believe the entire 4oz serving consisted of only one ingredient,” but—based on “common experience”—it was plausible that consumers would believe that one serving of cooked ready-to serve “pinto beans” “typically does not have the same consistency as soup.”  Thus, if the serving size x number of servings listed was relatively close to the can’s capacity, a consumer could reasonably believe that the can was filled nearly to capacity with the ingredient advertised and reflected in the name of that product—here, pinto beans.

Defying Williams, Arizona Canning argued that consumers should look at the ingredient list. But “most shoppers digest the information on the back after seeing the pretty picture on the front,” and the entirety of the advertising had to be considered. Consumers often look for whether specific ingredients are present or absent, but they are less likely to consider which ingredient is most predominant, “especially if it appears obvious from the name of the product or the label’s display panel.”

UCL unfairness: Under the balancing test (more often used in cases brought by consumers, like this one), “courts must examine the practice’s impact on its alleged victim, balanced against the reasons, justifications and motives of the alleged wrongdoer. In short, this balancing test must weigh ‘the utility of the defendant’s conduct against the gravity of the harm to the alleged victim.’” The harm was selling consumers a less-than-half-full product, depriving them of the benefit of the bargain. Arizona Canning argued that, if the case succeeded, food manufacturers would be “unnecessarily stifled from displaying their product on the label.” The Court didn’t agree. “Countless food manufactures have successfully displayed and marketed their product without consumer confusion or a likelihood of deception… [A]ny utility derived from Defendant’s practice and desire to display an image of a ‘suggested serving’ of beans, that omits or abates the predominant ingredient, is outweighed by the alleged negative impact on Plaintiffs and other putative class members.”

Under the competing tethering test (usually used when claims are brought by competitors, “unfair means conduct that threatens an incipient violation of an antitrust law or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law…”  Ignoring the antitrust part of this, plaintiffs alleged (and the court agreed) that they also satisfied the tethering test because defendants violated the spirit of the FDCA and the Sherman Food, Drug, and Cosmetic Law. Arizona Canning rejoined that, as a matter of public policy, it is common for food/beverage products to indicate items on the principal display panel that are not the predominant ingredient. That’s true, but even then, false advertising is not ok, and complying with the FDCA isn’t enough to preclude a false advertising claim. “It is quite possible to comply with FDA regulations and still violate the policy or spirit underlying those regulations.”

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