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Food for Thought: Ninth Circuit Affirms Dismissal of Putative Class Action Against Lip Balm Manufacturer Accused of Deceiving Customers as to Product Amount

Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016)

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.

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