The amended opinion filed September 27, 2016, is identical to the original opinion, with one exception. In discussing the reasonable consumer standard, the court addressed plaintiff’s reliance on Williams v. Gerber Prods. Co., 552 F. 3d 934 (9th Cir. 2008).
The plaintiffs in Williams, parents of small children, brought a class action against Gerber alleging deceptive packaging of the products. The product, called "Fruit Juice Snacks" and intended for toddlers, included the images of fruits on the box, stated that it was made with "fruit juice and other natural ingredients," and stated that it was "One of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy." The Williams plaintiffs contended that the two most prominent ingredients were sugar and corn syrup, and that the only fruit or juice in the product was white grape juice from concentrate. In Williams, the Ninth Circuit concluded that the features on the packaging would lead a reasonable consumer to believe that the product contained the fruits pictured in the package and that all ingredients were natural. The court further held that a reasonable consumer should not be expected to look beyond the misleading representation on the front of the box to discover the ingredient list on the side panel. Thus, if defendant was deceptive, the fine print revealing the truth does not dispel the deception.
In Ebner, the court found plaintiff’s reliance on Williams unpersuasive because there was no deceptive act to dispel. The weight label on the lip balm product complied with applicable law and was consistent with other representations on the package. The Ninth Circuit did not find any words or images "from which any inference could be drawn or on which any reasonable belief could be based about how much of the total lip product can be accessed by using the screw mechanism." Thus, without any such statement or depiction, the court did not think it was plausible that the general consumer or defendant’s target consumers could be misled into thinking that the entire amount of lip balm could be extracted from the tube.
©2016 Carlton Fields Jorden Burt, P.A. Carlton Fields practices law in California through Carlton Fields Jorden Burt, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.