Norton Rose Fulbright: 1 Plaintiff Not Enough to Prove Advertising Likely to Deceive Reasonable Consumers

By Matthew Gurvitz

It seems that lately, all it takes to bring a false advertising class action regarding “all natural” or “no sugar added” representations on product packaging is the say-so of one consumer who claims the representations are misleading (even though they might not be technically “false”).

Indeed, at the motion to dismiss stage, courts tend to be quite consumer friendly, many times finding that bare allegations of deception are enough to move the case into discovery.

While this may be frustrating for many defendants who believe they have done nothing wrong, there is light at the end of the tunnel. Despite the ease with which these cases can move past the motion to dismiss phase, actually proving (not just alleging) that a reasonable consumer is likely to be misled presents more of a challenge.

Depending on the presiding court, there are varying levels of proof plaintiffs must meet to show that a reasonable consumer is likely to be deceived by challenged advertising. Some courts require a consumer survey, or some other extrinsic evidence, demonstrating that the alleged misrepresentations actually mislead consumers. Haskell v. Time [enhanced opinion available to lexis subscribers].

Other courts hold that as long as the plaintiff introduces some evidence that reasonable minds could differ, the issue should be left to the jury to decide. Miletak v. Allstate Ins. Co. [enhanced opinion].

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