Overview:
Class-action lawsuits litigating consumer product claims to be “100% Natural,” “Made in America,” and “Non-Toxic” often use consumer surveys as evidence. Why are they so persuasive?
Consumer surveys have long been an important source of evidence in trademark lawsuits, where they are used to provide evidence about issues like the likelihood that reasonable consumers may be confused by use of a trademark. However, as a recent article in Corporate Counsel observes, surveys are also a useful tool in false advertising cases, particularly false advertising class actions.
Consumer surveys examining advertising claims often measure what message a reasonable consumer would take away from claims made on packaging or in other marketing communications. Class-action plaintiffs often rely on consumer perception surveys to support their cases for false, misleading, or deceptive advertising.
Who Is the ‘Reasonable Consumer’?
Properly designed and executed surveys provide empirical evidence about how consumers interpret marketing claims like “All Natural,” “Made in the USA,” or “Eco-Friendly.” In cases involving allegations of false advertising, the legal standard is often how a reasonable consumer would interpret a claim. Courts, class-action plaintiffs, and regulators need data to provide evidence about how consumers interpret the at-issue statements.
Consumer surveys can be used by either side of a false advertising dispute as evidence of what real consumers believe the advertisement says. These surveys can also examine whether the claim was material to consumer purchasing decisions. More complex surveys can show how consumers make decisions in the marketplace, which can inform damages models when paired with economic analysis. All of these types of surveys can provide important evidence in deceptive advertising claims.
Regulating Deceptive Practices
The Federal Trade Commission (FTC) uses the reasonable consumer standard to evaluate deceptive practices under Section 5 of the FTC Act: “A representation, omission, or practice is deceptive if it is likely to mislead consumers acting reasonably under the circumstances and is material.” (FTC 1984 Policy Statement on Deception) This definition includes representations or omissions—that is, both things the advertiser says and things it leaves out. The definition also requires that a claim is likely to mislead, the claim was material to decision-making, and that a reasonable consumer would likely be confused. Consumers are also protected under the Lanham Act’s false advertising provisions (15 U.S.C. § 1125(a)), which also involves the reasonable consumer standard.
Reasonable Disputes and Survey Strategies in Action
“100% Natural Flavors” Coca-Cola Litigation (2025)
California consumers filed a class action case against The Coca-Cola Company, alleging that Fanta and Sprite were misleadingly marketed as containing “100% Natural Flavors,” when they included synthetic additives such as citric acid and potassium citrate. Consumer surveys could be used to measure whether a reasonable consumer would interpret the phrase “natural flavors” to exclude such ingredients, and whether that interpretation affected buying decisions. Read more about this dispute here.
“Made in the USA” Country-of-Origin Confusion
Sometimes, brands claim their products were “Made in the USA” when those products were not entirely made or assembled in the USA. Parties may use surveys to demonstrate that a substantial portion of the public believes “Made in the USA” implies entirely domestic sourcing, or to defend an origin allegation. Defendant Bigelow Tea alleged that the fact that its tea bags were manufactured in the United States was sufficient to support a “Made in the USA” claim. Consumer surveys could be used to measure what consumers understood from that advertisement. Read the details of the case, and why courts rejected Bigelow’s argument, here.
“Non-Toxic” and “Eco-Friendly” Greenwashing and Environmental Messaging
Companies use environmental claims to market to consumers who make buying decisions based on environmental or health impacts. “Eco-safe,” “non-toxic,” and “biodegradable” claims are facing increasing scrutiny in industries ranging from cleaning products to fashion. Regulators and plaintiffs use consumer perception surveys to measure discrepancies between messaging and consumer expectations. Read more about environmental claims, biodegradable claims, and other sustainable claims.
Surveys for Damages Analysis
Surveys can help quantify damages on a large scale. Damages surveys can shed light on whether or how consumers used a product or one of its features, or the materiality of a particular claim or product feature to consumer purchasing decisions. A conjoint survey is one way to estimate a price premium, which is the amount consumers allegedly overpaid for a product due to a false belief created by misleading advertising, as an input to a damages analysis. This analysis helps provide evidence needed to certify classes and determine damages.
Withstanding Legal Scrutiny
Surveys must adhere to strict standards to be admitted as evidence and relied upon by courts. These standards include sampling the correct population for the survey, replicating the real world as much as possible in the survey design, and taking steps to avoid and account for bias. Often, these surveys are supported by testimony from experts who understand these standards.
Whether you’re pursuing or defending a class action, consumer surveys can provide you with a strategic advantage in disputes involving false or deceptive advertising. MMR Strategy Group, an IMS Legal Strategies company, brings decades of experience designing, executing, and testifying in class-action false advertising litigation, submitting surveys that withstand the toughest legal scrutiny. If you are involved in a false advertising class-action dispute, contact us.