it's plausibly deceptive to sell "Kids" gummies identical to adult gummies

Barrales v. New Chapter, Inc., 2025 WL 1584424, No. 2:25-cv-01171-HDV-KES (C.D. Cal. Jun. 4, 2025)

Plaintiff alleged that defendant’s Fiber Gummies were deceptively labeled (1) because the claim “with 4g of probiotic fiber” was false because it implies that each gummy contains that amount of fiber, when the serving size is 2 gummies; and (2) because the KIDS Organic Fiber Gummies falsely implies that the product is specifically formulated or uniquely suitable for kids. She brought the usual California claims (including common-law claims).

regular gummies

Kids gummies

Compared to the regular gummies, the front label of the Kids Gummies has the word “kids” with each letter a different color, but they have the exact same chemical composition and consumption method as the Fiber Gummies.

Defendant argued that the FDCA preempted the claim because it expressly allows claims made by serving size. FDCA regulations allow “direct statements about the level (or range) of a nutrient in the food” so long as they “do not in any way implicitly characterize the level of the nutrient in the food and are not false or misleading in any respect.” Here, the allegations were that the nutrient content claims were false or misleading; thus, plaintiff was seeking only to enforce a requirement identical to federal law and her claims weren’t preempted.

Defendant argued that “with 4g[rams] prebiotic fiber” was specifically allowed because it was based on the “reference amount customarily consumed,” i.e., serving size, FDA-defined as the “maximum amount recommended, as appropriate, on the label for consumption per eating occasion.” “But the Ninth Circuit differentiates between claims that challenge and seek to alter accurate statements about serving size and the nutrient content thereof, and claims that a defendant’s ‘omission of supplemental or clarifying language’ misleads consumers.” The plaintiff wasn’t seeking to alter how the serving size is calculated, nor how the fiber content of each serving is calculated.

Misleadingness was also plausible; a reasonable consumer might not consult the back label. Believing that each gummy contains four grams of fiber was “plausibly an unambiguous interpretation of the label based solely on the language used.”

Likewise, it was plausible for a reasonable consumer to be deceived by the “KIDS” label into thinking it was especially suitable for kids. Contrary cases involved factual differences, e.g. a medicine whose “infant” version came with a dropper for administration and its otherwise identical “children’s” version had a cup. “Here, there is nothing, pharmacologically or otherwise, that differentiates the Fiber Gummies from the Kids Gummies.”