Two consumers walked into supermarkets on a mission to find "nutritious, healthy snacks" that "would not likely increase [their] risk of disease" and later walked out with Fruit Bowls in Gel, Fruit Bowls in Juice, Canned Fruit in Juice, Canned Fruit in Heavy Syrup, Canned Fruit in Light Syrup, and Canned Fruit Juice. Perhaps those wouldn't be your first choices, given that mission statement, but the consumers were swayed, in part, by Dole's "promise to provide everyone, everywhere with good nutrition."
The consumers later learned – perhaps after consulting with their nutritionists or their legal counsel – that the products were high in added sugar and that the consumption of too much added sugar may not be good for you. They then sued Dole alleging, among other things, that Dole had broken its promise and that the company's claims amounted to false advertising. In response, Dole argued that its claims were mere puffery. The court's analysis is instructive in drawing the line between the two.
In order to establish a claim for false advertising in California, a plaintiff must generally show that it's "probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Here, the court found that reasonable consumers wouldn't rely on the "good nutrition" statements in the context of the labels. The court noted, for example, that the statements appeared in conjunction with claims that the products were "full of sunshine" and that you could "bring sunshine with you wherever you go."
"To state the obvious," the court wrote, "the Products are not literally 'full of sunshine,' and no consumer can 'bring sunshine' with them 'wherever' they go – whether by purchasing one of the Products or doing something else." (The judge has obviously not met our podcast narrator, but his larger point is well-taken.) Because the "conceivably health-related phrases" were combined with fanciful language and drawings, reasonable consumers would not take them seriously.
The court also noted that the challenged claims appeared "immediately adjacent to the Nutrition Facts panel showing the amount of both naturally occurring and added sugar," and, thus, that no reasonable consumer "would assume that the Product is generally healthy or would not increase the risk of any disease." (Click here for another example of a recent case in which a court determined that a list of ingredients would prevent reasonable consumers from being misled by a claim on a label.)
This decision is good news for food companies and other advertisers who use colorful language. Remember, though, that defining puffery is, in the words of NAD, "more of an art than a science" and that there are some surprising decisions out there. (Here is one.) We'll keep monitoring these cases, so check back with us for new developments. As always, we promise to provide everyone, everywhere with good information and a ray of sunshine.
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