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Public Policy

Plaintiffs Challenging Food Labels May Be Required to Conduct Expensive Consumer Perception Surveys to Demonstrate Deception

A federal judge in California recently made it more difficult for plaintiffs to demonstrate that food labels are misleading. The judge's ruling points to the need for consumer perception surveys to demonstrate that consumers were misled by allegedly false food labels. Consumer perception surveys are expensive and the cost likely will factor into decisions about filing such cases. The case was Bruton v. Gerber Products Co., No. 12-CV-02412 in the Northern District of California, [enhanced version available to subscribers].[i]

Plaintiff Natalia Bruton testified that she read and relied on claims on Gerber food product labels in buying baby food. She asserted that nutrient-content claims such as "Excellent Source," "Good Source," "Healthy", and "No Added Sugar" on labels were misleading and contrary to law and therefore violated California's Unfair Competition Law ("UCL"), California's False Advertising Law ("FAL"), and Consumers Legal Remedies Act ("CLRA").

After the parties completed discovery, Gerber filed for summary judgment asserting that there was insufficient evidence of deception. The judge agreed.

Under the California statutes at issue, in order to show that a product is misleading the plaintiff "must produce evidence showing a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care."[ii] Plaintiff relied primarily on her own testimony to demonstrate deception. However, the Court found that such an "isolated example" is not sufficient. The Court further observed that Plaintiff's reliance on unspecified FDA regulations and warning letters was insufficient evidence of how reasonable consumers would view the labels at issue.

Plaintiff also claimed that the products were "unlawful" under California law because they were misbranded in violation of FDA regulations and therefore consumer perception was irrelevant. The Court found that this claim sounded in fraud because, according to Plaintiff's Complaint, "FDA regulates nutrient-content claims precisely because nutritional claims on infant and toddler food can be highly misleading."[iii] Therefore, the Court found that since the injury caused by misbranding is the same as that caused by the alleged deception, proof of deception was required for this claim as well. The court noted that the complaint "sounded in fraud" and that plaintiffs were targeting deception. Since the proof of deception was lacking, the "unlawful" claim also failed.

Consumer deception is generally proven through consumer-perception surveys. While the Court recognized as a matter of law that surveys and expert testimony are not required, practically speaking, it is hard to see how most plaintiffs will be able to sufficiently demonstrate deception without one. Since such a survey can easily cost $60,000 - $80,000 requiring such surveys raises the stakes for plaintiffs considering food labeling litigation.

[i] Order Denying Plaintiff's Motion for Partial Summary Judgment, and Granting Defendant's Motion for Summary Judgment, Bruton v. Gerber Products Co., No. 12-CV-02412 (N.D. Cal. Dec. 18, 2014).

[ii] Id. at 9 (quoting Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1026 (9th Cir. 2008)) (internal quotation marks omitted), [enhanced version available to subscribers].

[iii] Id. at 13 (internal quotation marks omitted) (emphasis in the original).

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