Last month, Judge Lucy H. Koh of the Northern District of California granted summary judgment in favor of Gerber because the plaintiff failed to satisfy the “reasonable consumer standard” in backing up her allegations that Gerber baby food labeling was misleading in violation of California state law. The case illustrates an important threshold to the reasonable consumer standard for consumer deception, and Gerber can rest more easily knowing that the case has been pacified. But there’s a wrinkle in the baby fat.

Natalia Bruton and a putative class alleged that the labeling on Gerber’s baby food products—specifically those for children under the age of two and labeled as “Excellent” or “Good” sources of vitamins and minerals, “Healthy” and as having “No Sugar Added”—violated California’s Unfair Competition Law (UCL), False Advertising Law and Consumers Legal Remedies Act. According to the Ninth Circuit, all these claims are governed by the “reasonable consumer standard,” which requires evidence showing that there is “a likelihood” that the advertising in question would “confoun[d]” an appreciable number of reasonably prudent purchasers exercising ordinary care.

Bruton’s only evidence of consumer deception was her own personal experience, particularly her experience purchasing Gerber’s baby food over Beech-Nut’s competing products. Beech-Nut’s products did not share the “No Sugar,” “Excellent Source” and “Healthy” labeling featured on Gerber’s products, which Bruton found misleading because they “make you believe that [Gerber’s product] has something that Beech-Nut’s doesn’t have.” Bruton also asserted that the Food, Drug, and Cosmetic Act (FDCA), which is expressly adopted in California’s Sherman Law, generally bans nutrient content claims on food intended specifically for use by children less than 2 years of age because such nutritional claims can be highly misleading. For Bruton, this was additional evidence that reasonable consumers are misled by such labeling.

Judge Koh was unmoved, and repeatedly emphasized that under Ninth Circuit precedent, “a few isolated examples of actual deception are insufficient” to create a general dispute of material fact: if a few voices are insufficient, then surely a single crybaby is insufficient. Judge Koh did not state the exact size of the chorus required to survive summary judgment, though she did say that surveys and expert testimony are not required in the Ninth Circuit. Judge Koh also noted that Bruton failed to conduct further discovery to add to her personal anecdotes, despite having two or three months between the denial of class certification and the close of discovery. Apparently, the court has no sympathy for self-imposed timeouts.

Despite its victory, Gerber should not settle down for a nap just yet. Bruton also alleged unlawful misbranding in violation of the UCL, which incorporates federal violations as predicates for an action under the UCL. Judge Koh obviated the issue of unlawful labeling under the FDCA by finding that Bruton’s misbranding claims sounded in fraud and thus were subject to the reasonable consumer test, which Bruton had already failed. But Judge Koh did state that certain misbranding claims do not sound in fraud, and such claims may have lower evidentiary thresholds for surviving summary judgment, which at least in theory could point to a lower bar in some circumstances.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.