GERBER Gets a “Snackdown” by the Ninth Circuit Over Misleading Packaging

In Williams v. Gerber Prods. Co., 523 F.3d 934 (9th Cir. Cal. 2008), a panel of the United States Court of Appeals for the Ninth Circuit (“Court” or “Court of Appeals”), in a published opinion, reversed the judgment of the District Court, and found, under California law, Plaintiffs could proceed with their case against Gerber Products Company (“Gerber”). The issue? Whether Plaintiffs (a certified class of parents) had alleged a valid legal claim that a Gerber fruit juice product, developed for toddlers, was deceptively marketed.

Gerber, “one of the most trusted names in baby food and baby care,” marketed its Fruit Juice Snacks product (“Snacks”) in a package featuring images of fruit such as oranges, peaches, strawberries and cherries. The side panel of the packaging described the product as made “with real fruit juice and other all natural ingredients.” In addition, another side panel contained a statement announcing Snacks was, “one of a variety of nutritious Gerber Graduates foods and juices.”

Thinking they purchased healthy snacks for their kids, Plaintiffs sued Gerber under, among other things, California state tort law for misrepresentation and breach of warranty, as well as claims under California’s Unfair Competition law (Bus. & Prof. Code § 17200, et seq.) and California’s Consumer Legal Remedies Act (Civil Code § 1750, et seq.). Plaintiffs’ deception claims were based, in part, upon the following allegations: (1) The product contained no fruit juice from any of the fruits pictured on the packaging; (2) The only juice contained in the product was white grape juice from concentrate; and (3) The two most prominent ingredients in the product were corn syrup and sugar.

Gerber filed a motion to dismiss and the District Court granted Gerber’s motion fining the package statements were not likely to deceive a reasonable consumer. The Court of Appeals disagreed. In reversing the District Court’s order, the Court recognized that “whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer.” It further found a number of Gerber’s packaging features could likely deceive a reasonable consumer. “The product is called ‘fruit juice snacks’ and the packaging pictures a number of different fruits, potentially suggesting (falsely) that those fruits are contained in the product,” stated Judge Pregerson in the Opinion of the Court. Further, the Court found the statement that the product “was made with ‘fruit juice and other all natural ingredients’ could easily be interpreted by consumers as a claim that all ingredients in the product were natural, which appears to be false.” Disagreeing with the District Court, the Court found, “reasonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.”

Finally, in a statement sure to make consumer products manufacturer’s take note (especially those marketing products for infant or toddler use), the Court added, “We do not . . . think that a busy parent walking through the aisles of a grocery store should expect to verify that the representations on the front of the box are confirmed in the ingredient list. Instead reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging. We do not think the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misrepresentations and provide a shield for liability for the deception.”

Practice Note: In reading the full opinion, this commentator is of the opinion the Court of Appeals, while correct on the application of the law, held Defendant Gerber to a higher standard than that of an ordinary manufacturer of consumer products. Gerber, in its own words, is “one of the most trusted names in baby food and baby care.” The Court likely took note of this when crafting its opinion. One wonders if the same standard would have been applied to a beer manufacturer or a coffee beverage manufacturer, i.e. products marketed to and primarily intended for adults.

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