Class action lawsuits alleging misleading advertising of food and beverage products show no sign of abating anytime soon. So we have to give a shout out once in a while when the good guys score a win and common sense appears to prevail.
This happened recently in a class action alleging that Starbucks had misleadingly claimed that its sour gummy candies were only naturally flavored. To Starbucks’ credit, the gummies are actually naturally flavored. Plaintiff, however, purported to be outraged by the fact that the gummies contained fumaric acid, an artificial ingredient that helps make the gummies sour. This, in turn, led to the question debated by philosophers reaching as far back as Aristotle – “is sour a flavor?”
Fortunately, in dismissing the complaint, the judge did not need to resolve this knotty issue. Instead the judge concluded that no “reasonable” consumer could have believed that Starbucks was making a claim that its sour gummies were only naturally flavored. The judge noted that under California law the reasonable consumer test has four prongs: (1) literal truth, (2) common sense, (3) the front-back problem and (4) nature of the brand name. With respect to the first prong, the judge noted that Starbucks (no doubt on the basis of wise legal counsel) nowhere claims that its sour gummies are all-natural flavored. Instead the packaging notes that the candies are “apple, watermelon, tangerine and lemon” flavored. While the court observes that it would not be unreasonable for a consumer to assume that there were at least some natural flavors in the product, the front of the label statement falls well short of claiming that there are only natural flavors. (Not so one of our favorite childhood candies, SweeTarts, which recently settled a similar class action, but it proudly claimed “no artificial flavors” on its label.)
The court also found that plaintiff’s allegation failed the “common sense” test. Not only did the label nowhere state that the gummies were only naturally flavored, there was no imagery or other descriptive language on the package that suggested “all natural” and the gummies themselves were visible through the packaging which led the court to conclude that their bright colors did not exactly scream out “all natural” (although, ironically, the added color was from natural sources). The court also rejected the argument that any alleged violation of Food and Drug Administration labeling requirements warranted a finding of deception. The court said that while any alleged regulatory violation might be probative as to whether a reasonable consumer might be misled, it was not determinative. Finally, in what would have otherwise been an ominous ruling for food companies, almost all of which engage in some form of health and wellness promotion, the judge rejected the argument that Starbucks’ health and wellness marketing somehow implied that its gummies were all natural.
The judge quickly disposed of the last two factors as well. First, the judge found that there was no contradiction between the front and back of the package because the front of the package did not claim all natural. Nor did the brand name of the product – “sour gummies” – in any way imply all natural.
One can only hope that this ruling represents a return to “common sense” when it comes to food class actions, but such wishful thinking would no doubt fail the “reasonable advertising lawyer” test.