The Juicy Details
Two beverage distributors, Vilore Foods Co. and Arizona Canning Company, were accused of false and misleading advertising by a proposed class of consumers in the Central District Court of California. The defendants distribute and advertise Kern’s juices, under the name “nectar,” which is a product of Mexican producer Grupo Jumex.
Plaintiffs asserted that the claims of “100% Natural” and “made with whole fruit” violated federal and state false advertising laws because the beverages included dl-malic acid, which is an “unnatural” ingredient. This lawsuit, brought in May 2020, was on a third amended complaint when a judge dismissed a request for class certification, based in part on an expert survey.
Botched Beverage Litigation Survey for Likelihood of Deception
The plaintiffs, looking to certify California and national classes of consumers who purchased the fruit juices, relied on a survey conducted by an expert, assessing, in the judge’s words, “the importance consumers placed on certain attributes when deciding whether to purchase juice-based beverages.” The testifying expert’s survey did not impress the judge, who said it did not address whether potential class members were likely to be deceived, and therefore couldn’t support class certification.
In his report, the plaintiffs’ expert looked to assess the importance consumers placed on certain attributes when purchasing juice-based beverages, and the effect of an “artificially flavored” label. His survey concluded that, as the judge phrased it, “consumers are willing to pay approximately 29% more for a Kern’s product with a retail price of 99 cents that does not indicate it contains artificial flavors, and 30% less for a product that contains artificial flavors.”
Unfortunately, this survey failed to assess whether consumers would be led to believe by a front label that products do not contain artificial flavors, or contain only natural flavors. The court ruled that “[the] survey results do not speak to the likelihood of deception stemming from the Products’ front labels and cannot establish such likelihood of deception on a classwide basis.” This is a major flaw in the survey’s design, and if the litigation survey had been designed to provide evidence of commonality for class certification purposes, the decision might have gone differently.
MMR’s testifying experts have decades of experience designing, conducting, and testifying in support of reliable, court-accepted litigation surveys. If you require research or a rebuttal in an IP or false advertising matter, contact MMR Strategy Group.