Consumer Law

Survey flaws prevent it from saving vanilla false advertising claim

Survey flaws prevent it from saving vanilla false advertising claim

Clark
v. Westbrae Natural, Inc., 2021 WL 1580827, No. 20-cv-03221-JSC (N.D. Cal. Apr.
22, 2021)

I find
the vanilla class actions fascinating because they are starting to reject
surveys, pushing this area of the law towards a normative vision of what’s
misleading to a reasonable consumer. I don’t have a very strong position on
whether misleadingness should be empirically or normatively assessed, but I do
think courts should be clear on what they’re doing and not bounce unpredictably
between the two concepts. We are definitely not there yet.

Anyway,
Clark alleged that a label describing soy milk as “vanilla” soymilk
misrepresented to reasonable consumers that the product’s vanilla flavor was
derived exclusively from the vanilla bean plant. The court found that not
plausibly misleading despite allegations that a survey showed 403 consumers a
picture of the product and asked “What does the term ‘Vanilla’ on the above
pictured product convey to you about the origin of the vanilla flavor?” Nearly
half, 49.6%, of the consumers surveyed selected the response that they
“believed that the term ‘Vanilla’ on the Product means that that the origin of
the Product’s vanilla flavor ‘comes exclusively from ingredients derived from
the vanilla plant, such as vanilla beans or vanilla extract.’ ”

But so
what? The survey presumes that the label conveys something about the source of
the flavor, and didn’t give participants the option of stating that they
believed that the label conveyed nothing about the origin of the vanilla taste.
“In any event, even without the survey’s flaws, the survey does not shift the
prevailing reasonable understanding of what reasonable consumers understand the
word vanilla to mean or make plausible the allegation that reasonable consumers
are misled by the term vanilla”  (cleaned
up). This is a remarkable statement: how does the court know what the
“prevailing” understanding of reasonable consumers is, without consumer
reaction evidence? Especially on a motion to dismiss? The suggestion is that
the court’s common sense couldn’t be refuted even with an impeccable survey,
because, presumably, the respondents wouldn’t be “reasonable” consumers.

It
just wasn’t plausible that a reasonable consumer would interpret a product
labeled as a “vanilla” product to mean that the vanilla flavor is derived
exclusively from the vanilla bean plant. “Such an inference is just too far a
reach.” This was true even though plaintiff alleged that there is a
competing vanilla soymilk product on the market with a similar price point that
obtains its vanilla flavor exclusively from the vanilla plant. Still, the
complaint didn’t allege that consumers knew that or that, if they did, they’d
make the same assumption about defendant’s product. (What counts as common
sense is quite variable. The truffle/manuka honey cases contrast with this
result in a “heads the marketer wins, tails the consumer loses” way: Here,
products that actually have the characteristics at issue don’t show that it’s
reasonable for consumers to think they would, while the absence of
similar-but-truthfully-advertised products is used against consumers in the
truffle/manuka cases.)

The
plaintiff also didn’t plausibly allege violation of federal regulations on
“characterizing flavors.”

 

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