The Ninth Circuit Relies On Reasonable Consumers' Experiences to Dismiss a Cosmetics False Advertising Case
By Dennis S. Ellis, Katherine F. Murray & Margaret N. Buckles
The Ninth Circuit's decision in Ebner vs. Fresh, Inc. relied on the experiences of the "reasonable consumer" to dismiss a consumer false advertising class action for failure to state a claim. The decision is encouraging to manufacturers and retailers, as it recognizes the reality that consumers, especially consumers of cosmetics products, are knowledgeable and aware of what they are buying. It also sends a message to district courts that, when evaluating claims brought under California's unfair competition and false advertising statutes, they must examine such claims through the eyes of a reasonable consumer, not the least-sophisticated consumer.