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Freeman v. Time, Inc. - 68 F.3d 285 (9th Cir. 1995)


By explicitly imposing a reasonable care standard on advertisers, Cal. Bus. & Prof. Code § 17500 implicitly adopts such a standard for consumers as well: unless particularly gullible consumers are targeted, a reasonable person may expect others to behave reasonably as well. Where there is no allegation that such consumers have been targeted, a false or misleading advertising and unfair business practices claim must be evaluated from the vantage of a reasonable consumer.


Freeman received two separate mailers for the "Million Dollar Dream Sweepstakes," a promotion of Time, Inc., a publishing corporation. The mailers both contained statements in large type representing that Freeman won the sweepstakes, qualified by language in smaller type indicating that Freeman would win only if he returned a winning prize number. Freeman filed two complaints against the sweepstakes companies, alleging that defendants' published fraudulent and misleading promotional materials under the California Unfair Business Practices Act (UBPA) and the California Consumer Legal Remedies Act (Act). The district court dismissed the action pursuant for failure to state a claim upon which relief could be granted. Freeman appealed.


Did Freeman state a claim under either the California Unfair Business Practices Act or the California Consumer Legal Remedies Act?




The court affirmed the dismissal and held that Freeman failed to state a claim under the UBPA because Freeman could not show that an ordinary or reasonable person would have been mislead by the sweepstakes entry that he received. None of the qualifying language was hidden or unreadably small. Any person who thought that he had won the sweepstakes was put on notice that it was not guaranteed simply by doing sufficient reading to comply with the instructions for entering the sweepstakes. Freeman also failed to state a claim under the Act. When defendants' promotions were reasonably read, they made no representation that the reader had won and, thus, had been conferred certain rights.

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