Thursday, September 30, 2021

Survey flaws prevent it from saving vanilla false advertising claim

Clark v. Westbrae Natural, Inc., 2021 WL 1580827, No. 20-cv-03221-JSC (N.D. Cal. Apr. 22, 2021)

I find the vanilla class actions fascinating because they are starting to reject surveys, pushing this area of the law towards a normative vision of what’s misleading to a reasonable consumer. I don’t have a very strong position on whether misleadingness should be empirically or normatively assessed, but I do think courts should be clear on what they’re doing and not bounce unpredictably between the two concepts. We are definitely not there yet.

Anyway, Clark alleged that a label describing soy milk as “vanilla” soymilk misrepresented to reasonable consumers that the product’s vanilla flavor was derived exclusively from the vanilla bean plant. The court found that not plausibly misleading despite allegations that a survey showed 403 consumers a picture of the product and asked “What does the term ‘Vanilla’ on the above pictured product convey to you about the origin of the vanilla flavor?” Nearly half, 49.6%, of the consumers surveyed selected the response that they “believed that the term ‘Vanilla’ on the Product means that that the origin of the Product’s vanilla flavor ‘comes exclusively from ingredients derived from the vanilla plant, such as vanilla beans or vanilla extract.’ ”

But so what? The survey presumes that the label conveys something about the source of the flavor, and didn’t give participants the option of stating that they believed that the label conveyed nothing about the origin of the vanilla taste. “In any event, even without the survey’s flaws, the survey does not shift the prevailing reasonable understanding of what reasonable consumers understand the word vanilla to mean or make plausible the allegation that reasonable consumers are misled by the term vanilla”  (cleaned up). This is a remarkable statement: how does the court know what the “prevailing” understanding of reasonable consumers is, without consumer reaction evidence? Especially on a motion to dismiss? The suggestion is that the court’s common sense couldn’t be refuted even with an impeccable survey, because, presumably, the respondents wouldn’t be “reasonable” consumers.

It just wasn’t plausible that a reasonable consumer would interpret a product labeled as a “vanilla” product to mean that the vanilla flavor is derived exclusively from the vanilla bean plant. “Such an inference is just too far a reach.” This was true even though plaintiff alleged that there is a competing vanilla soymilk product on the market with a similar price point that obtains its vanilla flavor exclusively from the vanilla plant. Still, the complaint didn’t allege that consumers knew that or that, if they did, they’d make the same assumption about defendant’s product. (What counts as common sense is quite variable. The truffle/manuka honey cases contrast with this result in a “heads the marketer wins, tails the consumer loses” way: Here, products that actually have the characteristics at issue don’t show that it’s reasonable for consumers to think they would, while the absence of similar-but-truthfully-advertised products is used against consumers in the truffle/manuka cases.)

The plaintiff also didn’t plausibly allege violation of federal regulations on “characterizing flavors.”


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