Monday, April 28, 2008

Fruit Juice Snacks Packaging Could Deceive “Reasonable Consumer”

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Purchasers of Gerber “Fruit Juice Snacks” stated California statutory false advertising and unfair competition claims and could plausibly prove that a reasonable consumer would be deceived by the product's packaging, the U.S. Court of Appeals in San Francisco has ruled.

The federal district court in San Diego erred in concluding—without considering any evidence beyond the packaging—that the purchasers failed to state claims, according to the appellate court.

Use of “Fruit Juice,” Images of Fruit

The purchasers, who were parents of small children, brought a class action challenging the use of the words “Fruit Juice” juxtaposed alongside images of fruits such as oranges, peaches, strawberries, and cherries. The purchasers contended that this juxtaposition was deceptive because the product contained no fruit juice from any of the fruits pictured on the packaging and because the only juice contained in the product was white grape juice from concentrate.

The purchasers challenged a statement on the side panel of the packaging describing the product as made “with real fruit juice and other all natural ingredients,” even though the two most prominent ingredients were corn syrup and sugar. The purchasers also challenged another side panel statement, namely, that the product was “one of a variety of nutritious Gerber Graduates foods and juices.” The purchasers challenged Gerber’s decision to label the product a “snack” instead of a “candy,” “sweet,” or a “treat.” Finally, the purchasers alleged that the phrase “naturally flavored” did not comply with applicable type size requirements.

“Reasonable Consumer” Test

Claims under the California false advertising and unfair competition statutes were governed by a “reasonable consumer” test, the appellate court observed. Under that standard, the purchasers had to show that members of the public were likely to be deceived.

The lower court based its decision solely on its own review of an example of the packaging. While the primary evidence in a false advertising case is the advertising itself, California courts had recognized that whether a business practice was deceptive would usually be a question of fact not appropriate for decision without consideration and weighing of evidence from both sides, according to the appellate court.

The April 21, 2008 decision in Williams v. Gerber Products Co. will be reported at CCH Advertising Law Guide ¶62,925.

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