consumer false advertising plaintiffs can't use surveys the way competitors can

Sinatro v. Barilla America, Inc., No. 22-cv-03460-ASK (N.D. Cal. Sept. 30, 2026)

Deception of a substantial number of reasonable consumers, even well less than a majority, can be the basis of Lanham Act liability. But consumer protection cases have difficulty handling this, and so they make up all-or-nothing tests. Here, that means nothing.

closeup on challenged claim

Sinatro sued Barilla for the usual California claims, alleging that the claim “Italy’s #1 Brand of Pasta” on its boxes deceived consumers into thinking it was made in Italy from Italian ingredients when, in fact, that pasta was made in the United States from non-Italian ingredients. (This claim has now been removed.) On each of the relevant boxes, the side label with nutrition facts also included the representation “Made in the U.S.A. with U.S.A. and imported ingredients” in white text directly beneath Barilla’s name and location, which are statements required by FDA regulation.

side disclosure

nutrition panel

In Sinatro’s survey, 57 percent indicated that the statement “does communicate” that “[t]he product’s ingredients are sourced from Italy,” 32.3 percent indicated that the statement “does not communicate this,” and 10.7 percent selected the “Don’t know / not sure” option. A separate conjoint survey found a 9.9% price premium associated with the claim.

plaintiffs' survey prompt

Barilla’s survey replicated Sinatro’s but included five—instead of just one—possible interpretations. In response, 84.0 percent of respondents answered affirmatively for “[t]he brand is the most popular pasta brand in Italy,” while 42.3 percent did so for “[t]he product’s ingredients are sourced from Italy.” Perhaps unsurprisingly, Barilla’s surveyor decided to remove certain “inattentive” or “confused” respondents from the sample, reducing the 42.3 percent “from Italy” figure to either 34.2 or 27.5 percent, depending on how you counted, whereas the 84.0 percent “most popular” figure remained nearly unchanged (dropping only to 83.5%).

Barilla survey prompt

I would note that these reduced figures are more than enough to win a Lanham Act false advertising claim. Also, the reduction came from counting misunderstandings of other claims, which is one way of declaring a bunch of actual consumers to be unreasonable. (The 34.2 percent figure comes from eliminating respondents who indicated that a “[n]on-GMO” label means that the product is gluten free, while 27.5 percent comes from eliminating these same respondents and also those who indicated that the Challenged Representation means that “[t]he brand is the oldest producer of pasta in Italy.”)

Did the survey even matter? Front-of-product deception is actionable under consumer protection law despite qualifiers on the side panel, but only if the front is “unambiguously” deceptive. This isn’t the Lanham Act concept: a front label is not “ambiguous” “simply because it is susceptible to two possible meanings” but rather “when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation.” That is, reasonability is interposed as a separate, normative screen, regardless of what a substantial number of consumers actually think.

The court excluded plaintiff’s survey under Daubert. (Again, there’s plenty of Lanham Act precedent, but courts tend not to cite across regimes, which given the different meanings of “ambiguous” is probably overall a good thing, though a comprehensive harmonization would also be welcome.) The court found the consumer perception survey biased (and also criticized the conjoint analysis because it “impermissibly measures the undifferentiated impact of all interpretations of the Challenged Representation without isolating the impact attributable to only misleading interpretations”).

The survey asked only whether the package conveys that “[t]he product’s ingredients are sourced from Italy,” and provided only three possible responses: an affirmative answer, a negative answer, and “[d]on’t know / not sure.” This was biased because by only asking that one question, the survey steered respondents “to that very meaning and gives them no opportunity to indicate other meanings.” This seems inconsistent with most Lanham Act survey cases, which generally (1) allow questions about specific messages, at least after an initial “did the ad say anything about?” question, and (2) treat offering yes/no/not sure options as enough to avoid impermissible leading.

The court also held that the survey “fails to capture the possibility that respondents understand the Challenged Representation to have multiple meanings,” and thus couldn’t assist the trier of fact.  The don’t know/not sure option wasn’t enough because the survey design “bias[es] the survey by suggesting to respondents, at least implicitly, that they should believe there is at least some sort of relationship between the different items when the possibility might not even have occurred to the vast majority of consumers who see the items.”

Survey respondents who answered [the] question affirmatively might have never made an association with Italian ingredient sourcing had the survey not fed it to them. And respondents who normally would think the statement means something else entirely may have abandoned that opinion upon intuiting from the survey itself what they should take the Challenged Representation to mean. A “[d]on’t know /  not sure” option does not negate such effects, because the question by its design elicits them before respondents even go to choose an answer.

Query: Under this analysis, is any closed-ended question allowable?

Without the survey, “no reasonable juror could conclude on the remaining record evidence that ‘members of the public are likely to be deceived.’” Named plaintiffs’ testimony wasn’t enough because, “[a]lthough surveys and expert testimony regarding consumer expectations are not required, a few isolated examples of actual deception are insufficient.”

To the extent that the words “Italy’s #1 Brand of Pasta” make a claim about brand—namely, that Barilla is the foremost brand of pasta in Italy—undisputed record evidence showed that Barilla had leading market share, and the court also found this the most plausible meaning.

So, would consumers necessarily require more information before concluding that the pasta was Italian in origin? The court rejected the most “plaintiff-friendly” reading of 9th Circuit precedent, which would find ambiguous only those labels that “ma[k]e no representation at all” or, like “Nature Fusion,” “[are] so devoid of any concrete meaning that there [is] nothing from which any inference could be drawn or on which any reasonable belief could be based.” That would make ambiguity essentially a puffery defense. The court wasn’t willing to do that; to do so would mean finding the front label ambiguous “because it is at least amenable to the (undisputedly false) meaning that the Plaintiffs here advance—i.e., that the pasta is made in Italy with Italian-sourced ingredients.”

But using this standard “would effectively mean that any label susceptible to at least one concrete false meaning would be actionable.” [Note that this is in fact the rule in Lanham Act cases, where a substantial number of reasonable consumers would receive this message as shown by acceptable evidence of actual consumer reception. This is because Lanham Act plaintiffs are allowed to aggregate consumer behavior even if we accept substantial variation among consumers; probabilistic liability is ok for them, whereas consumer plaintiffs must rely on a presumption that all consumers are likely to be deceived, so courts set the standard higher (even though that’s not strictly logically entailed).] Anyway, to do so would be inconsistent with Trader Joe’s, which found that “100% New Zealand Manuka Honey” could support multiple meanings, including such false meanings as “that its contents were 100% derived from the Manuka flower.”

Thus, Barilla’s front label was ambiguous, and the survey, even if admissible, didn’t address ambiguity and even reinforced the conclusion that the brand popularity meaning was the predominant one.  “[A] reasonable consumer would necessarily require more information before concluding that the statement should instead be understood to mean something else entirely. Accordingly, Barilla has made no ‘unambiguously deceptive’ claim.” And the side label clarified US origin, making it not misleading as a matter of law.

The court further justified its holding as providing an easily administrable rule to lower courts and clear guidance to retailers. “[S]ellers may have confidence that so long as they do not make ‘unambiguously deceptive’ statements on their front labels, they may rely on their back and side labels to clear up misunderstandings.” And if consumers unreasonably persist in being fooled, so much the worse for them!