By Jeffrey S. Edelstein, Partner, Advertising, Marketing and Media
The U.S. Court of Appeals, Ninth Circuit, reinstated the dismissal of most of a challenge to the labels on Gerber’s line of baby food.
Natalia Bruton filed suit in 2012, alleging that Gerber Products Co. deceived consumers with illegal nutrient content claims for its baby foods, such as “as healthy as fresh,” “natural,” and an “excellent source” of various vitamins and minerals. A California federal court judge dismissed the case in 2015 and the plaintiff appealed.
After a three-judge panel initially reversed dismissal in an April memorandum disposition, Gerber sought a rehearing and scored a partial victory when the court found there was no genuine dispute of material fact on Bruton’s claims that the labels were deceptive in violation of California’s Unfair Competition Law (UCL), False Advertising Law (FAL) and Consumer Legal Remedies Act (CLRA).
Bruton’s theory of deception did not rely on the literal falsity of Gerber’s labels, the court explained. Instead, she contended that the combination of Gerber’s product claims and the lack of claims on competitors’ products made Gerber’s labeling likely to mislead the public into believing that Gerber’s products were of a higher quality than its competitors’ products.
Although the plaintiff’s theory of deception may be viable, as California courts have held that even technically correct labels can be misleading, Bruton failed to make her case, the panel said. “[E]ven assuming the validity of Bruton’s theory, the record does not include sufficient evidence to create a genuine dispute of material fact for trial as to consumer deception under her theory,” the court wrote.
The labels on competitors’ products made many of the same claims as Gerber’s labels, the court noted. “A reasonable jury comparing the labels side by side could not rationally conclude that Gerber’s labels were likely to deceive members of the public into thinking that Gerber’s products were of a higher quality than its competitors’ products that made the same type of claims,” the panel said.
Further, Bruton’s testimony about being misled while shopping was “vague, uncorroborated and self-serving and does not tend to show that Gerber’s labels were misleading or deceptive,” the court added. “We hold that the record does not contain sufficient evidence to create a genuine dispute of material fact for trial as to the outcome under the reasonable consumer test.”
The Ninth Circuit affirmed summary judgment in favor of Gerber on Bruton’s claims the labels were deceptive in violation of the UCL, FAL and CLRA. However, the panel said other claims—unjust enrichment, unlawful labels under the UCL and plaintiff’s motion to certify the class—could move forward.
To read the order in Bruton v. Gerber Products Company, click here.
Why it matters: Although the Ninth Circuit agreed with Gerber that Bruton failed to state a claim that its labels were deceptive in violation of the UCL, FAL and CLRA, the panel did note that the plaintiff’s theory—that even technically correct labels can be misleading—is viable under California state law.