Have you ever purchased food or products for your kids (or yourself) based on its packaging or advertising, only to later find out that you were misled? If so, you probably are not alone and you may have a the right to file a lawsuit—both on your behalf and on the behalf of similarly-situated consumers.
These types of deceptive advertising claims often arise when brands make representations that products are “healthy,” “natural,” “organic,” “pure,” or use “green” marketing strategies—which can often be misleading. Allegations of misleading advertising, which courts have found can sustain a lawsuit, are numerous and include the following:
· Huggies “Pure & Natural” Diapers were deceptive because the packaging represented that the diapers were free of unnatural ingredients when they actually contained polypropylene and sodium polyacrylate. The product’s “green marketing strategy”—which included the terms “pure & natural” and “Soft Organic Cotton” in the context of product packaging that includes green coloring and images of leaves, falsely conveyed to a reasonable consumer that the diapers are pure and natural and do not contain synthetic ingredients. Additionally, while a statement on the packaging represented that the diapers were made with “Soft Organic Cotton,” only part of the outside of the diaper included the cotton, meaning that it did not touch the baby’s skin as the inside, non-natural portions of the diaper did. Jou v. Kimberly-Clark Corp., No. C-13-03075 JSC, 2013 WL 6491158, at *6–8 (N.D. Cal. Dec. 10, 2013).
· Huggies “Natural Care” Wipes were deceptive because the front of the packaging prominently displayed the term “Natural Care” on an image of a green leaf under the name “Huggies,” which makes it plausible that a reasonable consumer would likely believe that the wipes contained only natural ingredients. The “Natural Care” wipes, however, contained two non-natural ingredients that were alleged to be hazardous, including one ingredient—sodium methylparaben—that the European Union has banned and that the Federal Drug Administration has restricted in food and beverages. Jou v. Kimberly-Clark Corp., No. C-13-03075 JSC, 2013 WL 6491158, at *10 (N.D. Cal. Dec. 10, 2013).
· Nestle’s “Juicy Juice Brain Development” juice contained very small amounts of the touted ingredient, DHA, which would require young children to consume an impractical and extremely high quantity of juice—more than a bottle’s worth each day—in order to obtain enough DHA to promote potential brain development. Chavez v. Nestle USA, Inc., 511 F. App’x 606, 606–07 (9th Cir. 2013).
· Gerber’s “Fruit Juice Snacks,” which had packing with pictures of fruits, suggested that those fruits or their juices were contained in the product—which was false. The packaging also stated that Fruit Juice Snacks were made with “fruit juice and other all natural ingredients,” which was false. And finally, the packaging claimed that Fruit Juice Snacks was “just one of a variety of nutritious Gerber Graduates foods and juices that have been specifically designed to help toddlers grow up strong and healthy,” which a court found could add to the potential deception. Williams v. Gerber Prod. Co., 552 F.3d 934, 939-40 (9th Cir. 2008).
· General Mills’ “Fruit Roll-Ups” and “Fruit by the Foot” had packaging which stated (in large print) that they were “made with real fruit,” and contained pictures of fruit, the depiction of imitation fruit letter, and the word “strawberry” in several places. The court determined that “[a]fter seeing these prominent aspects of the packaging, a reasonable consumer might be surprised to learn that a substantial portion of each serving of the Fruit Snacks consists of partially hydrogenated oil and sugars.” Lam v. Gen. Mills, Inc., 859 F. Supp. 2d 1097, 1104 (N.D. Cal. 2012) (emphasis added).
Challenging deceptive practices, like the ones described above, not only allows consumers to recoup their money. By filing class action lawsuits, the consumer can also protect the public from the same deceptive practices. Because of the need to protect the public, the law allows attorneys fees to be recovered from the parties who falsely advertised their products. This allows attorneys to take consumers’ cases on a “contingency” basis—meaning that the consumer challenging the deceptive advertising does not need to pay anything, with the attorneys only recovering their fees from the opposing party upon a victory. If the consumer wins, as a “lead plaintiff” she or he may also obtain a monetary bonus or award to compensate them for work done on behalf of the class.
That being said, plaintiffs and their attorneys can overstep and file suits which have no merit. For example, a plaintiff recently filed a lawsuit against Dr. Pepper, alleging that Diet Dr Pepper’s use of the term “diet” led “consumers reasonably [to] believe that drinking Diet Dr Pepper will assist in weight loss or healthy weight management.” Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1229 (9th Cir. 2019). The Court correctly pointed out that the word “diet” was not being used as a verb or noun—as in “he is dieting” or “she is starting a diet”—but rather as an adjective—meaning “reduced in or free from calories.” The Court therefore dismissed this lawsuit.
If any of this seems familiar and you would like to talk to an attorney, please contact L. David Russell (David@RussellLawPC.com) to discuss in more detail what legal options you may have available.