On May 5, 2016, the Ninth Circuit affirmed a district court’s decision to dismiss, without leave to amend, a class action complaint alleging a violation of the Washington Consumer Protection Act against Costco for the deceptive labeling of its “VitaRain Tropical Mango Vitamin Enhanced Water Beverage” product, holding the plaintiff failed to demonstrate plausibility or causation. Maple, et al. v. Costco Wholesale Corp., et al., Nos. 13-36089, 14-35038, 14-35059, 2016 WL 2621345.

District Court Dismisses Claim that “VitaRain” Is Misleading. In 2012, Harold Maple filed a class action lawsuit in the Eastern District of Washington against Costco and its bottler, Niagara Bottling, LLC, alleging a violation of the Washington Consumer Protection Act. The complaint alleged that the name and labeling of Costco’s “VitaRain Tropical Mango Vitamin ‎Enhanced Water Beverage” misleads consumers into thinking the beverage contains only vitamins and natural water. After two amendments, the district court dismissed the complaint without leave to amend, but without prejudice, because it “ha[d] not considered the merits of th[e] case.”

Ninth Circuit Affirms Dismissal, but with Prejudice. The plaintiff appealed the district court’s dismissal without leave to amend, and defendants cross-appealed challenging the decision to dismiss “without prejudice.” In an unpublished opinion, the Ninth Circuit affirmed the district court’s holding that the complaint failed to state a claim, vacated the dismissal “without prejudice,” and remanded with instructions to re-enter the judgment “with prejudice.”

“VitaRain” Is Not Misleading. The Ninth Circuit concluded that the name “VitaRain” is not likely to mislead a reasonable consumer as a matter of law. The court distinguished Ackerman v. Coca-Cola Co., No. CV-09-0395, 2010 WL 2925955 (E.D.N.Y. July 21, 2010) (unpublished) because the beverage at issue (Vitaminwater) contained the full names of two ingredients and the label contained misleading statements. “Here, the term ‘Vita’ could mean many things, rain could not be an actual ingredient, and the label contains no misleading statements.” Maple, 2016 WL 2621345, at *1.

Plaintiff Cannot Establish Causation. To the extent the plaintiff’s claim was based on certain ingredients labeled as “natural,” the Ninth Circuit held that such allegations failed because the plaintiff did not allege that he read those parts of the label. He therefore could not have been deceived by any “natural” statements. The court rejected plaintiff’s request to amend the complaint to allege a subclass of individuals who did read the label because plaintiff’s individual claims failed. “The potential existence of other classes of which Plaintiff is not a member,” the court concluded, “is irrelevant.” Id.

“VitaRain” Takeaway. Although it may be a challenge to obtain outright dismissal of “deception” claims on plausibility grounds, it is certainly not impossible. Maple, along with the Ninth Circuit’s similar decision in Ebner v. Fresh, demonstrates the limits of courts’ tolerance of “misbranding” claims when a label is not facially deceptive or false, and when there is no other indication that a consumer would be deceived. Maple also demonstrates that a plaintiff cannot establish causation if he or she fails to allege having read challenged labeling statements.