Lisa Vizcarra brought a proposed class-action suit in the U.S. District Court for Northern California against Unilever United States Inc. over its “natural vanilla” claim for Breyers Natural Vanilla Ice Cream. Unilever submitted a motion to exclude the survey report submitted on behalf of the plaintiff, and the plaintiff sought to obtain class certification. This is one of several claims of false advertising, in various forums, brought against Unilever regarding the vanilla representations on its packaging. But in this case, a flaw in a litigation survey prevented class certification.
A Claim That Is Anything but Vanilla: Facts
Unilever sells Breyers Natural Vanilla Ice Cream. Its packaging has vanilla orchids, two vanilla beans, and a scoop of ice cream with specks of black, which is what natural vanilla looks like, on the front of the packaging. Lisa Vizcarra purchased Breyers Natural Vanilla Ice Cream, and, upon finding out that its flavoring is not all-natural vanilla, brought a class-action suit alleging false advertising. On behalf of herself and a proposed class of California consumers, Vizcarra alleged that she paid a higher price for the ice cream because she relied on the “all-natural vanilla” statements on the packaging. Under the California False and Misleading Advertising Law and the Unfair Competition Law, she sought damages and an injunction to stop the allegedly false marketing practices.
How a Litigation Survey is Used
Vizcarra offered the opinions of a survey expert as evidence, and Unilever submitted a motion to strike that testimony and survey report under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993). To obtain class certification, the plaintiff must provide evidence that “reasonable consumers” would be deceived by the defendant’s marketing claims and packaging. A litigation survey is an accepted form of evidence in legal proceedings to measure consumers’ opinions, sentiment, and behavior. In this case, the court admitted the testimony but gave the survey no weight, because the survey lacked a control and therefore failed to isolate the statements at issue.
A Flaw in False Advertising Survey Design
The plaintiff’s expert submitted a consumer survey asking whether customers perceived the packaging to promise exclusively natural vanilla, and whether the claims about all-natural vanilla were material to the consumers’ decisions to purchase the product.
In the survey, 900 purchasers of Breyers Natural Vanilla Ice Cream were shown the front and sides of the packaging and asked:
What is your expectation about whether all or not all of the vanilla flavor comes from vanilla extract?
- Not all of the vanilla flavor
- All of the vanilla flavor
- Not sure
Of all respondents, 79.9% expected the all of the vanilla flavoring to be natural, 14.5% expected not all of the vanilla flavor to be natural, and 5.7% were unsure. To address the materiality of the vanilla representations to purchasing decisions, the expert asked which ice cream respondents would choose if one vanilla ice cream was naturally flavored and the other was not. Of all respondents, 88.6% said they would choose the ice cream whose source was all natural, 6.7% said they would purchase an ice cream that was not all natural, and 4.7% did not have a preference, based on the side and front of the packaging. The survey expert’s report concluded that the packaging’s images of natural vanilla and the words “natural vanilla” did cause consumers to perceive that the vanilla was naturally derived, and that Unilever’s alleged misrepresentation on this topic was material to consumers’ purchasing decisions.
Lastly, the plaintiff’s expert proposed a conjoint survey, to be conducted if needed to calculate damages, to determine how much more money consumers would pay for the ice cream if it were exclusively flavored with natural vanilla. The conjoint survey proposed would present 3-4 hypothetical buying situations to respondents, each of which offered products with 7-8 attributes that consumers might use to make purchasing decisions. Based on respondents’ choices, the survey expert proposed to calculate what market price premium, if any, would be attributable to Unilever’s allegedly false claims about natural vanilla.
Defendant Rebuttal Points to Problems With This Probability
Unilever brought in another survey expert to testify about flaws in the plaintiff’s survey. That expert explained that the Plaintiff’s survey expert used acceptable methods, but failed to use a control group, which allows survey-takers to remove the influence of respondents’ preexisting beliefs about vanilla and about Breyers Ice Cream. The opposing expert opined that without a control, the plaintiff’s expert could not and did not accurately measure whether a “reasonable consumer” was likely to be deceived by the vanilla representations. As a result, Unilever argued, the plaintiff’s survey should be excluded, struck, or given no weight, and the court should deny class certification.
The Importance of a Control in a Survey
The court denied the motion to strike or exclude the plaintiff’s survey, but found that the lack of any control in the plaintiff’s survey was enough to exclude the survey’s results, leading the court to deny the motion for class certification. The court wrote that without a control, the plaintiff’s survey failed to isolate the effects of Unilever’s representations about the vanilla content of the ice cream. As such, the court ruled that the plaintiff could not demonstrate the commonality necessary for class certification on the issue of deception. The court also denied certification on the other issues addressed by the plaintiff’s expert—materiality and damages—for the related reason that the expert did not specifically test or propose to test Unilever’s vanilla representations, as opposed to the entire package of ice cream. The motion for class certification was ultimately denied without prejudice.
That denial demonstrates that designing surveys to measure the behaviors of “reasonable consumers”—like the vanilla representations—is not always straightforward. As Professor McCarthy has observed, judges have come to expect controls in a properly designed survey. If you require airtight, custom-designed surveys to substantiate your advertising claim in court, contact us to discuss your case.