The Ninth Circuit Relies on Reasonable Consumers’ Experiences to Dismiss a Cosmetics False Advertising Case
On March 17, 2016, the United States Court of Appeals for the Ninth Circuit issued its decision in Ebner v. Fresh, Inc., No. 13-56644, 2016 WL 1056088 (9th Cir. Mar. 17, 2016), dismissing, without leave to amend, a putative class action alleging that defendant Fresh, Inc. (“Fresh”) violated California’s False Advertising Law, Unfair Competition Law and Consumers Legal Remedies Act by selling a lip product which, by design of the product’s container, resulted in consumers being able to use only a portion of the total product in the container.
In her Complaint, Plaintiff Angela Ebner alleged that Fresh deceived consumers about the quantity of lip balm in its Sugar Lip Treatment product, which was packaged in a 29 gram tube.
Fresh moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, contending, inter alia, that its conduct was affirmatively authorized by state and federal statutes and that its 4.3 gram net weight label was an accurate reflection of the amount of lip product in the container.
On September 11, 2013, the United States District Court for the Central District of California granted Fresh’s Motion to Dismiss, without leave to amend, finding, in relevant part, that: (1) Fresh’s labeling was permitted under California’s safe harbor doctrine; (2) Fresh was not profiting off the allegedly inaccessible portion of the product; and (3) Fresh’s packaging was not deceptive or misleading.
On September 19, 2013, Ebner appealed the District Court’s ruling to the United States Court of Appeals for the Ninth Circuit. On appeal, she argued that: (1) her claims regarding the design and packaging could not be dismissed as a matter of law because the district court had mischaracterized the design and packaging allegations; (2) she had alleged sufficient facts showing that a reasonable consumer could be deceived by Fresh’s design and packaging; and (3) the district court had incorrectly interpreted California’s safe harbor law.
The Ninth Circuit held oral argument on January 11, 2016, and issued its decision affirming the District Court’s ruling on March 17, 2016. In particular, the Ninth Circuit held that California’s safe harbor doctrine, which precludes plaintiffs from bringing claims based on conduct affirmatively permitted by statute, shielded Fresh from Ebner’s claim that the product’s weight label was deceptive and misleading.
On the other hand, the Ninth Circuit held that the safe harbor doctrine did not shield Fresh from Ebner’s contention that Fresh’s omission of clarifying information regarding the product’s full accessibility was misleading, explaining that “there is no law expressly permitting the omission of supplemental statements.”
The Ninth Circuit’s decision in Ebner 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. While manufacturers and retailers should not rely on the Ebner decision to push stronger claims, it does provide another weapon in their arsenals when defending against consumer class actions.
The Ebner decision may also signal a heightened skepticism by the judiciary to consumer class actions. In Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK, 2014 WL 6901867 (N.D. Cal. Dec. 8, 2014), Judge Lucy Koh, who was recently nominated for appointment to the Ninth Circuit, granted summary judgment to defendant Dole Packaged Foods, LLC (“Dole”) in a false advertising class action, holding that Dole’s frozen packaged fruit labels were not likely to deceive consumers. Citing Plaintiff Chad Brazil’s (“Brazil”) “insufficient evidence that the ‘All Natural Fruit’ label statement on the challenged Dole products was likely to mislead reasonable consumers,” Judge Koh noted that Brazil had failed to show that a reasonable consumer would not normally expect the allegedly synthetic ingredients to be found in the challenged Dole products.
In line with this trend, district courts have relied on other avenues by which to dispense with consumer class actions. In Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB, 2014 WL 2702726 (N.D. Cal. June 13, 2014), currently on appeal before the Ninth Circuit, a district court denied the plaintiffs’ attempt to certify a class in part because the class was not ascertainable. In explaining its decision, the court wrote: “The variety of products and of labels, combined with the lack of receipts and the low cost of the purchases, means that consumers are unlikely to accurately self-identify. Plaintiffs have offered no verifiable means of identifying class members.”