On Monday, the Ninth Circuit handed down an opinion applying the "likely to deceive" formulation of the UCL's "fraudulent" prong. Williams v. Gerber Products Co., ___ F.3d ___, 2008 WL 1776522 (9th Cir. Apr. 21, 2008). In Williams, the Ninth Circuit reversed an order dismissing the plaintiff's UCL claims (Williams v. Gerber Products Co., 439 F.Supp. 2d 1112 (S.D. Cal. 2006)), holding that the district court erred by assessing for itself whether the defendant's allegedly misleading labeling was "likely to deceive a reasonable consumer":
Here, the district court based its decision to grant the motion to dismiss solely on its own review of an example of the packaging. It is true that “the primary evidence in a false advertising case is the advertising itself.” Brockey v. Moore, 107 Cal.App.4th 86, 100 (Cal.App. 2003). California courts, however, have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer. See e.g., Linear Technology Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 134-35 (Cal.App. 2007) (“Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires ‘consideration and weighing of evidence from both sides’ and which usually cannot be made on demurrer.” (quoting McKell v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1472 (Cal.App. 2006))); Committee on Children’s Television, 35 Cal.3d at 197 (finding demurrer inappropriate in case where parents alleged deceptive advertising of sugar cereals).
The facts of this case ... do not amount to the rare situation in which granting a motion to dismiss is appropriate. Here, there are a number of features of the packaging Gerber used for its Fruit Juice Snacks product which 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 or their juices are contained in the product. Further, the statement that Fruit Juice Snacks was made with “fruit juice and other all natural ingredients” could easily be interpreted by consumers as a claim that all the ingredients in the product were natural, which appears to be false. And finally, the claim that Snacks is “just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy” adds to the potential deception.
Slip op. at 4195-96. At this point, the opinion has an interesting footnote with a useful quotation for advertising cases:
Gerber’s claim that Snacks is “nutritious,” were it standing on its own, could arguably constitute puffery, since nutritiousness can be difficult to measure concretely. See Cook, Perkiss and Liehe, Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir. 1990) (finding that statements are non-actionable puffery where they constituted “general assertions of superiority” rather than “factual misrepresentations”). This statement certainly contributes, however, to the deceptive context of the packaging as a whole. Given the context of this statement, we decline to give Gerber the benefit of the doubt by dismissing the statement as puffery. “It is not difficult to choose statements, designs, and devices which will not deceive.” United States v. Ninety-Five Barrels More or Less of Alleged Apple Cider Vinegar, 265 U.S. 438, 443 (1924).
Slip op. at 4196 n.3. The opinion goes on:
The district court suggests that “no reasonable consumer upon review of the package as a whole would conclude that Snacks contains juice from the actual and fruit-like substances displayed on the packaging particularly where the ingredients are specifically identified.” Williams, 439 F.Supp.2d at 1116. We disagree with the district court that reasonable consumers should 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. The ingredient list on the side of the box appears to comply with FDA regulations and certainly serves some purpose. We do not, however, think that a busy parent walking through the aisles of a grocery store should be expected 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 that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception.
Slip op. at 4196-97 (emphasis added). Finally, to illustrate these holdings, the opinion includes a copy of the challenged label:
Slip op. at 4199 (a full-size copy of the image is available at this link; click on the image to enlarge it).
The Ninth Circuit's reversal of the District Court's published order in Williams may necessitate reconsideration (or reversal) of other orders in which other District Courts followed Williams. See, e.g., McKinniss v. General Mills, Inc., 2007 WL 4762172 (C.D. Cal. Sept. 18, 2007); McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007).