On November 2, 2015, Judge Alsup of the Northern District of California dismissed a consumer class action against food manufacturer Plum Organics for failure to state a claim. In Workman et al. v. Plum Inc., D/B/A Plum Organics, Case No. C 15-02568, the putative class alleged that Plum Organics’ Mighty 4® puree pouches and fruit bars were deceptive because their labels showed pictures of pumpkin, pomegranate, and other ingredients that were not the products’ most prominent ingredients. The plaintiffs argued that this allegedly deceptive advertising was a violation of the California Consumer Legal Remedies Action, Section 1750, and the California Business and Professions Code, Section 17200. Plum Organics moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), lack of standing, and failure to plead with particularity as required by Fed. R. Civ. P. 9.
Judge Alsup applied a “reasonable consumer test” to hold that the plaintiffs’ allegations did not amount to a plausible claim, as required by Ashcroft v. Iqbal, 556 U.S. 662 (2009). The operative question was whether members of the public are likely to be deceived by the product at issue. He found that a reasonable consumer would not be deceived by the labels at issue. For one, there was no misrepresentation: the food items pictured on the label were ingredients in the products. Moreover:
In contrast to plaintiff’s assertions, a reasonable consumer would simply not view pictures on the packaging of a puree pouch or box of fruit bars and assume that the size of the items pictured directly correlated with their predominance in the blend. One can hardly walk down the aisles of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient. Every reasonable shopper knows that the devil is in the details. Moreover, any potential ambiguity could be resolved by the back panel of the products, which listed all ingredients in order of predominance, as required by the FDA.
The take-aways from this holding may be critical to food-labeling matters: (1) deception claims are still subject to dismissal on the pleadings and (2) the “reasonable consumer test” assumes that a reasonable shopper would not rely on pictures on the front of product packaging without reading the ingredient list. The latter finding may be especially useful in disposing of food-labeling litigation at the outset. Indeed, Judge Alsup granted a complete dismissal, without leave to amend, since “the labels at issue are not deceptive and the labels themselves cannot be changed by a new complaint.”