Monday, March 30, 2020

100% Pure Aloe can contain preservatives, stabilizers in the absence of evidence from consumers that they care

Beardsall v. CVS Pharmacy, Inc., --- F.3d ----, 2020 WL 1429214, No. 19-1850 (2d Cir. Mar. 24, 2020)

The court explains:

Plaintiffs brought state consumer deception claims [under 12 different states’ laws] against defendant Fruit of the Earth and its retailer clients. They alleged that defendants’ aloe vera products did not contain any aloe vera and lacked acemannan, a compound that plaintiffs say is responsible for the plant’s therapeutic qualities. But uncontested facts drawn from discovery showed these allegations to be false: the products were made from aloe vera and contained at least some acemannan.

To stave off summary judgment, plaintiffs changed their theory, claiming that the products were degraded and did not contain enough acemannan. Plaintiffs said that it was therefore misleading to call the products aloe vera gel, to represent them as “100% Pure Aloe Vera Gel,” and to market them as providing the therapeutic effects associated with aloe vera. Plaintiffs have not, however, presented evidence that some concentration of acemannan is necessary to call a product aloe or to produce a therapeutic effect. Nor have they offered evidence that consumers care at all about acemannan concentration. Whatever theoretical merit these claims might have had on a different record, this record simply does not contain evidence that would allow a reasonable jury to find in favor of plaintiffs. With this dearth of evidence, the district court granted summary judgment in favor of defendants. We affirm.

The aloe vera gels at issue are made by processing aloe vera plants, including the addition of stabilizers, thickeners, and preservatives to make the final gel product shelf-stable. “The parties agree that the products are 98% aloe gel (the reconstituted aloe vera solids) and 2% other ingredients (stabilizers and preservatives).” The Fruit of the Earth label calls the product “Aloe Vera 100% Gel” and “100% Pure Aloe Vera Gel.” An asterisk after “100% Gel” refers to information on the back of the label: “Plus stabilizers and preservatives to insure [sic] potency and efficacy.” Each label’s ingredient list shows that the product contains aloe juice and various other substances.

(1) Acemannan concentration. “No reasonable consumer, plaintiffs argue, would purchase an aloe vera product that contains low concentrations of what plaintiffs maintain is an important therapeutic component.” This is a theoretically viable claim, but there was no evidence of material misleadingness. Citing cases, including Lanham Act cases, that asked for survey evidence, the court noted no evidence that consumers made purchasing decisions based on ingredient content. Nor was there evidence that some concentration of acemannan was necessary to render the product effective.

The plaintiff’s expert testified that fresh aloe should contain at least 5% acemannan by dry weight, pointing to a trade organization’s standards, while that used by defendants contained 1.01% acemannan by dry weight, and testing on the final product indicated correspondingly lower concentrations of acemannan in the final product compared to what the expert expected in an aloe product containing undiluted aloe juice. In a footnote, the court noted that 45 mg/L and 65 mg/L, compared to the expected 200–500 mg/L, did not count as “trace,” “infinitesimally small,” “barely detectable,” and “nonexisten[t].” Anyway, there was no testimony that lower acemannan concentration meant that the product couldn’t fairly be described as aloe, and no expert opinion on the relationship between aloe concentration and efficacy.  The named plaintiffs’ testimony that they found the labeling misleading did not fill the gap; “they all felt misled because they were incorrectly informed by their lawyers that the products contain little or no aloe vera.”  Cases allowing claims to proceed have involved extrinsic evidence to show how consumers were likely to be materially misled, such as survey evidence that consumers did not expect “soluble and microground” coffee in Keurig-compatible pods to be instant coffee, or survey evidence going to materiality, or internal marketing documents about the value of consumer perceptions of strength. “Plaintiffs here, in contrast, have offered no evidence that the products fell short of consumers’ expectations in any material way.”

The court qualified its holding: “This is not to say that extrinsic evidence in the form of consumer surveys or market research is always needed for a plaintiff to survive summary judgment or judgment as a matter of law on a deceptive advertising claim. But such evidence is necessary where the advertising is not clearly misleading on its face and materiality is in doubt.” Without such evidence here, there was not enough to go to a jury.

(2) Therapeutic efficacy: again, failed for lack of evidence that the products were ineffective or that they didn’t contain enough acemannan to achieve a therapeutic effect.

(3) “100% Pure.” First, there wasn’t enough evidence that this was a misrepresentation that the product was “high quality” or “especially effective” aloe; there was no evidence indicating that consumers interpret these as statements of quality. Second, the preservatives and stabilizers didn’t make the claim misleading. The district court found the label ambiguous and clarified by the ingredients list. Plaintiffs conceded in briefing and depositions that “the presence of preservatives—in reasonably small amounts—was acceptable and something they expected,” and that “[n]o [p]laintiff took the label to mean that there was absolutely nothing other than aloe vera in the bottle.” So this theory didn’t work on these facts, though the court pointedly announced its skepticism of defendants’ position “that an asterisk pointing to an ingredient list in fine print could save virtually any deceptive slogan claiming purity.”

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