May 25, 2023
Reasonable Consumer Test Wins for Kroger in Consumer Lawsuit
Kroger's Ad Claim
Kroger's claim "Just Fruit" was included on the label of its spreadable fruit product.
The suit was brought by a consumer (a putative class action) based on an Oregon statute.
The plaintiff's claim was that Kroger misled consumers into thinking that the product contained only fruit but instead contained ingredients derived from a fruit that don't exist in nature in that form.
The 9th Circuit Court of Appeals affirmed the trial court's dismissal of the lawsuit.
Issue: Was the “Just Fruit” claim false?
No, because the court found that each of the ingredients at issue was derived from fruit.
The Ulitmate Issue: Was the “Just Fruit” claim likely to mislead reasonable consumers?
Specifically, does the claim “create "a probability that a significant portion of the general consuming public or targeted consumers, acting reasonably in the circumstances, could be misled."
Holding: No, reasonable consumers are not likely to be misled.
* The product label was silent and did not imply anything regarding sugar content.
* Reasonable consumers would not interpret the claim as misleading since spreadable fruit products generally tend to contain added sugars.
This is an ingredient claim case.
Some cases might go the other way depending on the type of product involved due to the fact that the claim was definitive: only fruit.
Here, given that it's common knowledge among consumers that similar food products typically contain added sugars, the plaintiff had an uphill battle arguing that the “Just Fruit” claim was misleading (particularly when the claim was not false).
Finally, food products are required to provide labeling information regarding nutrition and ingredients, so it's surprising that the labeling didn't disqualify the plaintiff's argument from the beginning.