Beardsall v. CVS Pharm., Inc.

Opinion

 [*970]  Hamilton, Circuit Judge. Plaintiffs brought state consumer deception claims against defendant Fruit of the Earth and its retailer clients. They alleged that defendants' aloe vera [**2]  products did not contain any aloe vera and lacked acemannan, a compound that plaintiffs say is responsible for the plant's therapeutic qualities. But uncontested facts drawn from discovery showed these allegations to be false: the products were made from aloe vera and contained at least some acemannan.

 [*971]  To stave off summary judgment, plaintiffs changed their theory, claiming that the products were degraded and did not contain enough acemannan. Plaintiffs said that it was therefore misleading to call the products aloe vera gel, to represent them as "100% Pure Aloe Vera Gel," and to market them as providing the therapeutic effects associated with aloe vera. Plaintiffs have not, however, presented evidence that some concentration of acemannan is necessary to call a product aloe or to produce a therapeutic effect. Nor have they offered evidence that consumers care at all about acemannan concentration. Whatever theoretical merit these claims might have had on a different record, this record simply does not contain evidence that would allow a reasonable jury to find in favor of plaintiffs. With this dearth of evidence, the district court granted summary judgment in favor of defendants. We [**3]  affirm.

I. Undisputed Facts and Procedural Background

A. Facts

Defendant Fruit of the Earth, Inc. manufactures aloe vera gel. It both sells the product under its own brand and produces private-label versions for defendants CVS, Walgreens, Walmart, and Target. At issue in this appeal are the Fruit of the Earth and Walgreens products.

The two aloe vera gels are indisputably made from aloe vera plants, though the raw aloe vera harvested by Fruit of the Earth's suppliers is processed both before and after being delivered to Fruit of the Earth. The suppliers harvest, fillet, and depulp the aloe vera leaves. The resulting aloe is then pasteurized, filtered with active charcoal to remove color and impurities, treated with preservatives, and dehydrated for shipping. Fruit of the Earth then reconstitutes the dehydrated aloe and adds stabilizers, thickeners, and preservatives to make the final gel product shelf-stable. The parties agree that the products are 98% aloe gel (the reconstituted aloe vera solids) and 2% other ingredients (stabilizers and preservatives).

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