Manufacturers might assume that they can avoid false advertising claims by accurately disclosing a product’s ingredients on the ingredient label. The Ninth Circuit held otherwise in a 2008 case involving Gerber’s “Fruit Juice Snacks.” See Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir. 2008). Plaintiffs in Williams alleged that the product’s packaging was likely to mislead consumers to believe that “Fruit Juice Snacks” actually contained the various fruits depicted on the product’s label. Id. at 939. Gerber moved to dismiss, arguing that no reasonable consumer could be deceived by the packaging in light of the accurate ingredient list contained on the “Nutrition Facts” panel. The district court agreed; the Ninth Circuit did not, finding that “reasonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list[.]” Id.
We’d like to be able to report that Williams was an aberration. But its holding has continued to gain traction outside of the Ninth Circuit. A New York district court cited Williams in refusing to dismiss a case alleging that “vitaminwater” was falsely advertised as healthy. See Ackerman v. The Coca-Cola Co., No. 09-cv-0395, 2010 WL 2925955, at *16-17 (E.D.N.Y. Jul. 21, 2010). And while the holding in Williams lay dormant in California for several years, it recently reared its ugly head in a case against General Mills involving similar allegations with respect to their “Fruit Roll-Ups” and “Fruit by the Foot” products. Lam v. General Mills, Inc., No. 11-5056-SC, 2012 WL 1656731, at *1 (N.D. Cal. May 10, 2012); see also Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 U.S. Dist. LEXIS 101371 (N.D. Cal. July 20, 2012).
This doesn’t mean that courts have completely thrown common sense out the window. In the appropriate case, courts continue to dismiss claims where no likelihood of deception exists. For example, in Videtto v. Kellogg USA, No. 2:08CV01324-MCEDAD, 2009 WL 1439086 (E.D. Cal. May 21, 2009), a case that involved “Froot Loops” cereal, the court dismissed plaintiffs’ claims, finding that “the fanciful use of a nonsensical word [‘Froot’] cannot reasonably be interpreted to imply that the Product contains or is made from actual fruit.” See also Werbel v. PepsiCo, Inc., C 09-04456 SBA, 2010 WL 2673860 (N.D. Cal. July 2, 2010) (no reasonable consumer could mistake “cereal balls with a rough, textured surface in hues of deep purple, teal, chartreuse green and bright red” for natural fruit); Carrea v. Dreyer’s Grand Ice Cream, Inc., C 10-01044 JSW, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011) (no reasonable consumer would be deceived into thinking that ice cream was wholesome or otherwise healthy by labels such as “original” or “classic”), aff’d, 2012 U.S. App. LEXIS 6851 (9th Cir. Cal. Apr. 5, 2012) (unpublished); Dvora v. General Mills, Inc., CV 11-1074-GW PLAX, 2011 WL 1897349 (C.D. Cal. May 16, 2011) (no reasonable consumer would believe that the cereal at issue contained real fruit where the package did not picture any fruit or represent that it contained fruit). In the end, however, it’s better to be safe than sorry. Manufacturers of consumer goods should consider the totality of their advertising claims and not rely on ingredient lists to cure potentially false or deceptive statements made on a product’s packaging.