by Steve Gardner
Earlier this week, in Anderson v Hain (highlights added), Judge Edward J. Davila of the Northern District of California issued an opinion on a motion to dismiss that is a good example of the trend to accept consumer pleadings of deception in food labeling. The Northern District judges have considered food deception issues repeatedly and Judge Davila’s opinion is a good example of the middle ground among the judges.
Four points are particularly worth noting:
1. The Court adopts the prevailing trend of opinions allowing consumers to bring claims for products that they didn’t actually purchase but are substantially similar to the product(s) they did purchase.
2. The Court adopts the stricter reading of standing to obtain future injunctive relief, recognizing that courts differ on the point but holding that the fact that California law expressly allows a plaintiff to seek future relief does not in itself establish Article III standing. However, the Court expressly recognizes that the plaintiff could pursue an injunctive claim in state court: "If this means that Plaintiff must pursue parallel litigation, then so be it. Both court systems exist so that all varieties of claims have a forum for adjudication."
3. The Court joins with pretty much every other court in rejecting the oft-raised defense that the lack of an FDA definition of ‘natural' preludes a state deception-based claim: "Defendant also suggests that since the Food and Drug Administration ('FDA') has not defined the word 'natural,' the word is too vague to be actionable. That argument is unpersuasive since the FDA’s opinion on 'natural' is not a commentary on whether or not use of the word on food labels would mislead a reasonable consumer operating under a common understanding of its meaning."
4. The Court also reminds this defendant that the Ninth Circuit (in Williams v. Gerber, the case that defense counsel like to pretend doesn’t exist) years ago rejected the (also oft-raised) defense that any consumer who might be deceived by language on the front of the box should be required to scour the entire box, just in case the truth is out there somewhere, quoting the Gerber opinion that a reasonable consumer is not "expected to look beyond misleading misrepresentations on the front of the box to discover the truth from the ingredient list in small print on the side of the box."