Williams v. Gerber ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAKIA WILLIAMS, individually and  No. 06-55921
on behalf of all others similarly D.C. No.
situated; RITA TABIU, CV-05-01278-JTM
Plaintiffs-Appellants,
ORDER DENYING
v.
GERBER PRODUCTS COMPANY, a  PETITION FOR
REHEARING EN
Michigan corporation, BANC AND
Defendant-Appellee. AMENDING
OPINION AND
AMENDED
 OPINION
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
February 7, 2008—Pasadena, California
Filed April 21, 2008
Amended December 22, 2008
Before: Harry Pregerson, Glenn L. Archer, Jr.,* and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Pregerson
*The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
16629
16632 WILLIAMS v. GERBER
COUNSEL
Harold M. Hewell, Hewell Law Firm, APC, San Diego, Cali-
fornia, for the plaintiffs-appellants.
Bryan Merryman, Francisco Cabada, White & Case LLP, Los
Angeles, California, for the defendant-appellee.
ORDER
The panel voted to deny the petition for rehearing and the
petition for rehearing en banc. A judge of our court then
called for a vote on whether to rehear this case en banc. The
en banc call failed because a majority of the nonrecused
active judges voted against en banc consideration. Fed. R.
App. P. 35. Therefore, the petition for rehearing en banc is
denied. Future petitions for panel rehearing and future peti-
tions for rehearing en banc will not be entertained.
Furthermore, the Opinion filed on April 21, 2008, is hereby
amended as follows:
Starting at the top of slip opinion page 4197, there are three
sentences. Eliminate the first sentence entirely. Move the sec-
ond sentence so that it follows the third sentence, so that the
two sentences will remain at the top of page 4197. Those two
sentences will now read as follows:
WILLIAMS v. GERBER 16633
We do not think that the FDA requires an ingredient
list so that manufacturers can mislead consumers and
then rely on the ingredient list to correct those misin-
terpretations and provide a shield for liability for the
deception. Instead, reasonable consumers expect that
the ingredient list contains more detailed information
about the product that confirms other representations
on the packaging.
OPINION
PREGERSON, Circuit Judge:
Named class members Nakia Williams and Rita Tabiu
(“Appellants”), parents of small children, brought a class
action against Gerber Products Company (“Gerber”). An
amended complaint alleged that Gerber deceptively marketed
its “Fruit Juice Snacks” (“Snacks”) a food product developed
for toddlers. The district court granted Gerber’s motion to dis-
miss under Rule 12(b)(6). We have jurisdiction under 28
U.S.C. § 1291, and we reverse.
I. BACKGROUND
Appellants bought Gerber’s Fruit Juice Snacks because
they sought healthy snacks for their children (ages two and
three) and because they trusted the Gerber name. Fruit Juice
Snacks are sold as part of Gerber’s “Graduates for Toddlers”
product line. Appellants’ amended complaint alleged eight
causes of action, including tort claims for misrepresentation
and breach of warranty, as well as claims under California’s
Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et
seq., and California’s Consumer Legal Remedies Act, Cal.
Civil Code § 1750 et seq. Appellants challenged five features
of the packaging used by Gerber to sell its Fruit Juice Snacks.1
1
A copy of the packaging is included as an appendix to this opinion.
16634 WILLIAMS v. GERBER
First, Appellants challenged the use of the words “Fruit Juice”
juxtaposed alongside images of fruits such as oranges,
peaches, strawberries, and cherries. Appellants contended that
this juxtaposition was deceptive because the product con-
tained no fruit juice from any of the fruits pictured on the
packaging and because the only juice contained in the product
was white grape juice from concentrate. Second, Appellants
challenged a statement on the side panel of the packaging
describing the product as made “with real fruit juice and other
all natural ingredients,” even though the two most prominent
ingredients were corn syrup and sugar. Third, Appellants
challenged a separate statement on the side panel; namely,
that Snacks was “one of a variety of nutritious Gerber Gradu-
ates foods and juices.” Fourth, Appellants challenged Ger-
ber’s decision to label the product a “snack” instead of a
“candy,” “sweet,” or a “treat.” Finally, Appellants alleged that
the phrase “naturally flavored” did not comply with applica-
ble type size requirements.2
Gerber filed a motion to dismiss under Rule 12(b)(6),
which the district court granted. The district court found that
Gerber’s statements were not likely to deceive a reasonable
consumer, particularly given that the ingredient list was
printed on the side of the box and that the “nutritious” claim
was non-actionable puffery. Appellants timely appealed.
2
Appellants’ amended complaint also alleged that after the original
complaint was filed, Gerber changed the packaging to remove some of the
allegedly deceptive representations. Gerber apparently changed the side
panel to remove the word “nutritious” from the original statement that
Snacks was “one of a variety of nutritious Gerber Graduates foods and
juices” and shortened “made with real fruit juice and other all natural
ingredients” to simply “made with real fruit juice.” Gerber also changed
the name of the product from “Fruit Juice Snacks” to “Fruit Juice Treats.”
Gerber denied that it made these changes as a result of the complaint.
Regardless, these changes and the reasons for the changes are not relevant
because this appeal concerns only the original packaging.
WILLIAMS v. GERBER 16635
II. STANDARD OF REVIEW
“A dismissal for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6) is reviewed de novo. All
allegations of material fact in the complaint are taken as true
and construed in the light most favorable to the plaintiff.”
Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116,
1120 (9th Cir. 2007) (internal citations and quotation marks
omitted).
III. DISCUSSION
A. Appellants’ Deficient Opening Brief
[1] Gerber argues that this appeal should be dismissed with
prejudice because of deficiencies in the opening brief. We
have the discretion to dismiss appeals because of deficiencies
in the briefs. See N/S Corp. v. Liberty Mutual Ins. Co., 127
F.3d 1145, 1146 (9th Cir. 1997) (dismissing appeal where
brief omitted standard of review, contained only a handful of
record citations, and exceeded the word limit, and where
appellant did not respond to motion to dismiss); Sekiya v.
Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) (dismissing
appeal where brief failed to provide applicable standard of
review, made virtually no legal argument, and lacked table of
contents, table of authorities, citations to authority, and accu-
rate citations to the record).
[2] Appellants’ opening brief fails to comply with the rules
of this circuit. The arguments are not well-developed or sup-
ported and there are multiple technical violations of the rules.
Even where we have previously dismissed appeals because of
deficient briefing, however, we have noted that “we would
feel most uneasy if this were an otherwise meritorious appeal,
which cried out for reversal of the district court’s decisions.”
N/S Corp., 127 F.3d at 1146. Here, we believe that Appel-
lants’ claim has merit. We have also received amicus briefs
from the Center for Science in the Public Interest and from
16636 WILLIAMS v. GERBER
the California Attorney General, which provide additional
support for Appellants’ legal arguments. We thus decline to
exercise our discretion to dismiss the appeal.
B. Gerber’s Preemption Argument
In Gerber’s answering brief, it argues for the first time that
some of Appellants’ claims were preempted by the Federal
Food Drug and Cosmetic Act (“FDCA”). Because Gerber did
not argue this below, the district court did not address the
issue, and we decline to decide this issue in the first instance
based on arguments made in an answering brief, particularly
where nothing in Appellants’ complaint suggested that they
were attempting to directly enforce violations of the FDCA.
C. The District Court’s Decision to Grant the Motion to
Dismiss
The district court granted Gerber’s motion to dismiss all of
Appellants’ claims. On Appellants’ statutory claims (under
California’s Unfair Competition Law and Consumer Legal
Remedies Act), the district court found that the Snacks’ pack-
aging was “not likely to deceive a reasonable consumer as a
matter of law.” Williams v. Gerber Products Co., 439
F.Supp.2d 1112, 1117 (S.D. Cal. 2006). It similarly dismissed
the fraud and warranty claims, holding that “the challenged
statements and images, viewed in context, are truthful or con-
stitute non-actionable puffery.” Id. at 1118.
[3] California’s Unfair Competition Law (“UCL”) prohibits
any “unlawful, unfair or fraudulent business act or practice.”
Cal. Bus. and Prof. Code § 17200. The false advertising law
prohibits any “unfair, deceptive, untrue, or misleading adver-
tising.” Cal. Bus. and Prof. Code § 17500. “ ‘[A]ny violation
of the false advertising law . . . necessarily violates’ the
UCL.” Kasky v. Nike, Inc. 27 Cal.4th 939, 950 (2002) (quot-
ing Comm. on Children’s Television, Inc. v. General Foods
Corp., 35 Cal.3d 197, 210 (1983)). California’s Consumer
WILLIAMS v. GERBER 16637
Legal Remedies Act (“CLRA”) prohibits “unfair methods of
competition and unfair or deceptive acts or practices.” Cal.
Civ. Code § 1770.
[4] Appellants’ claims under these California statutes are
governed by the “reasonable consumer” test. Freeman v.
Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995) (“[T]he false or
misleading advertising and unfair business practices claim
must be evaluated from the vantage of a reasonable consum-
er.” (citation omitted)); Lavie v. Procter & Gamble Co., 105
Cal.App.4th 496, 506-07 (Cal.App. 2003) (“[U]nless the
advertisement targets a particular disadvantaged or vulnerable
group, it is judged by the effect it would have on a reasonable
consumer.”).
[5] Under the reasonable consumer standard, Appellants
must “show that ‘members of the public are likely to be
deceived.’ ” Freeman, 68 F.3d at 289 (quoting Bank of West
v. Superior Court, 2 Cal. 4th 1254, 1267 (1992)). The Califor-
nia Supreme Court has recognized “that these laws prohibit
‘not only advertising which is false, but also advertising
which[,] although true, is either actually misleading or which
has a capacity, likelihood or tendency to deceive or confuse
the public.’ ” Kasky, 27 Cal.4th at 951 (quoting Leoni v. State
Bar, 39 Cal.3d 609, 626 (1985)).
[6] A district court should grant a motion to dismiss if
plaintiffs have not pled “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
127 S.Ct. 1955, 1974 (2007). “Factual allegations must be
enough to raise a right to relief above the speculative level.”
Id. at 1965. See also 5 C. Wright & A. Miller, Federal Prac-
tice and Procedure § 1356 (“[T]he motion [to dismiss] is not
a procedure for resolving a contest between the parties about
the facts or the substantive merits of the plaintiff’s case.”).
[7] Here, the district court based its decision to grant the
motion to dismiss solely on its own review of an example of
16638 WILLIAMS v. GERBER
the packaging. It is true that “the primary evidence in a false
advertising case is the advertising itself.” Brockey v. Moore,
107 Cal.App.4th 86, 100 (Cal.App. 2003). California courts,
however, have recognized that whether a business practice is
deceptive will usually be a question of fact not appropriate for
decision on demurrer. See e.g., Linear Technology Corp. v.
Applied Materials, Inc., 152 Cal.App.4th 115, 134-35
(Cal.App. 2007) (“Whether a practice is deceptive, fraudulent,
or unfair is generally a question of fact which requires ‘con-
sideration and weighing of evidence from both sides’ and
which usually cannot be made on demurrer.” (quoting McKell
v. Washington Mutual, Inc., 142 Cal.App.4th 1457, 1472
(Cal.App. 2006))); Committee on Children’s Television, 35
Cal.3d at 197 (finding demurrer inappropriate in case where
parents alleged deceptive advertising of sugar cereals).
Decisions granting motions to dismiss claims under the
Unfair Competition Law have occasionally been upheld. For
instance, in Freeman v. Time Inc., 68 F.3d at 285, we upheld
the dismissal of a challenge to a mailer that suggested the
plaintiff had won a million dollar sweepstakes. There, we
relied on the fact that the mailer explicitly stated multiple
times that the plaintiff would only win the prize if he had the
winning sweepstakes number. Thus, it was not necessary to
evaluate additional evidence regarding whether the advertis-
ing was deceptive, since the advertisement itself made it
impossible for the plaintiff to prove that a reasonable con-
sumer was likely to be deceived.
[8] The facts of this case, on the other hand, do not amount
to the rare situation in which granting a motion to dismiss is
appropriate. Here, there are a number of features of the pack-
aging Gerber used for its Fruit Juice Snacks product which
could likely deceive a reasonable consumer. The product is
called “fruit juice snacks” and the packaging pictures a num-
ber of different fruits, potentially suggesting (falsely) that
those fruits or their juices are contained in the product. Fur-
ther, the statement that Fruit Juice Snacks was made with
WILLIAMS v. GERBER 16639
“fruit juice and other all natural ingredients” could easily be
interpreted by consumers as a claim that all the ingredients in
the product were natural, which appears to be false. And
finally, the claim that Snacks is “just one of a variety of nutri-
tious Gerber Graduates foods and juices that have been spe-
cifically designed to help toddlers grow up strong and
healthy” adds to the potential deception.3
[9] The district court suggests that “no reasonable con-
sumer upon review of the package as a whole would conclude
that Snacks contains juice from the actual and fruit-like sub-
stances displayed on the packaging particularly where the
ingredients are specifically identified.” Williams, 439
F.Supp.2d at 1116. We disagree with the district court that
reasonable consumers should be expected to look beyond mis-
leading representations on the front of the box to discover the
truth from the ingredient list in small print on the side of the
box. The ingredient list on the side of the box appears to com-
ply with FDA regulations and certainly serves some purpose.
We do not think that the FDA requires an ingredient list so
that manufacturers can mislead consumers and then rely on
the ingredient list to correct those misinterpretations and pro-
vide a shield for liability for the deception. Instead, reason-
able consumers expect that the ingredient list contains more
detailed information about the product that confirms other
representations on the packaging.
3
Gerber’s claim that Snacks is “nutritious,” were it standing on its own,
could arguably constitute puffery, since nutritiousness can be difficult to
measure concretely. See Cook, Perkiss and Liehe, Inc. v. Northern Cal.
Collection Serv., Inc., 911 F.2d 242, 246 (9th Cir. 1990) (finding that
statements are non-actionable puffery where they constituted “general
assertions of superiority” rather than “factual misrepresentations”). This
statement certainly contributes, however, to the deceptive context of the
packaging as a whole. Given the context of this statement, we decline to
give Gerber the benefit of the doubt by dismissing the statement as puff-
ery. “It is not difficult to choose statements, designs, and devices which
will not deceive.” United States v. Ninety-Five Barrels More or Less of
Alleged Apple Cider Vinegar, 265 U.S. 438, 443 (1924).
16640 WILLIAMS v. GERBER
We reject Gerber’s assertion that the district court con-
cluded as an “alternate holding” that the product complied
with FDA guidelines. The district court did note that it
believed that “the FDA authorizes the way in which Gerber
labels snacks.” Williams, 439 F.Supp.2d at 1112. Contrary to
Gerber’s assertion, however, this was not an alternate holding
but simply support for the conclusion that the product was not
deceptive. Further, Gerber makes no argument as to how
compliance with certain FDA regulations would automatically
shield it from liability under these California statutes or tort
claims.4
[10] In conclusion, we find that, given the opportunity,
Appellants have stated a claim and could plausibly prove that
a reasonable consumer would be deceived by the Snacks
packaging. As such, the district court erred in concluding,
without considering any evidence beyond the packaging itself,
that Appellants’ complaint failed to state a viable claim.5
IV. CONCLUSION
The district court erred in determining as a matter of law
that the Snacks packaging was not deceptive. The decision of
4
Compliance with FDA regulations may be relevant to a preemption
argument. As we discussed above, however, we decline to address that
issue in this appeal.
5
We reject Gerber’s argument that Appellants waived their tort claims
on appeal. The district court’s decision on the misrepresentation and
breach of warranty claims rested on the conclusion that the packaging was
truthful. Appellants challenged this conclusion. Although Appellants did
not develop a distinct argument in their brief regarding their tort claims,
detailed discussion of these claims is unnecessary where the district
court’s decision on the tort claims rested on the same grounds as the deci-
sion on the statutory claims. We therefore find that Appellants’ failure to
raise the issues in the opening brief did not prejudice Gerber. See United
States. v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992).
WILLIAMS v. GERBER 16641
the district court is therefore REVERSED.
Judge Archer concurs in the result.
16642 WILLIAMS v. GERBER