Clif Bar Survives False Ad Challenge

Advertising Law

A California federal court dismissed a false advertising lawsuit against the makers of Clif Bars and Luna Bars that challenged their packaging for white chocolate macadamia bars.

Jamie Joslin and Courtney Davis filed their putative class action against Clif Bar & Company (Clif Bar) on behalf of California and New York consumers who purchased Clif Bar® White Chocolate Macadamia Nut and Luna® White Chocolate Macadamia bars. The plaintiffs argued that these bars are advertised and sold in a manner that misleads consumers into believing the bars contain white chocolate, when they in fact do not.

Clif Bar moved to dismiss the action, arguing that no reasonable consumer could be deceived into believing that the products contain white chocolate because the product labels include the phrase “natural flavor” and the ingredient lists do not reference white chocolate.

The plaintiffs responded that because of the smaller font of the phrase “natural flavor” and its location on the labels, which do not conform with the FDA regulations, a reasonable consumer would not interpret the phrase to be part of the products’ name and would instead view it as an “independent marketing statement about the positive qualities of the Products’ taste.”

U.S. District Court Judge Jeffrey S. White was not persuaded by the plaintiffs. The court pointed out that “to the extent the plaintiffs are making factual assertions about what a reasonable consumer would understand from the size and placement of the phrase, those facts were not included in the Complaint.”

“[A]ccepting Plaintiffs’ allegations as true, they have sufficiently alleged the label contains a misrepresentation,” the court wrote. However, “the Court concludes the allegations are not sufficient to show that reliance on that representation was reasonable or justifiable.”

Judge White also agreed with the defendant that the plaintiffs lacked standing to pursue injunctive relief.

The court noted that neither Joslin nor Davis alleged that they wanted or intended to purchase the products again and that the plaintiffs “need only inspect the ingredient list to discover that the Products do not contain white chocolate.” The court, however, introduced the possibility of the plaintiffs’ amending the complaint to focus on the use of the phrase “natural flavor” to characterize the taste of white chocolate coming from flavor rather than real white chocolate.

To read the order in Joslin v. Clif Bar & Company, click here.

Why it matters: Clif Bar relied on the use of the phrase “natural flavor,” which appears on the label close to the name of the bars, albeit in a smaller font size, to qualify the use of the term “white chocolate” in the name, as well as on the fact that the ingredient list does not include “white chocolate.” In dismissing the action, the court was careful to leave open the door to the possibility that reasonable consumers could interpret the phrase “natural flavor” to be misleading or insufficient to qualify the claim made in the products’ name. While the result may be the same in this case even if the plaintiffs amend the complaint as indicated by the court, it is important to note that food companies should not assume that using the term “natural flavor” will automatically insulate them from potential consumer litigation where the product does not actually include an ingredient implied by its name.



pursuant to New York DR 2-101(f)

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