Ninth Circuit Weighs In On The "Reasonable Consumer"

• Published date: 10 August 2021
• Subject Matter: Consumer Protection, Media, Telecoms, IT, Entertainment, Consumer Law, Advertising, Marketing & Branding
• Law Firm: Frankfurt Kurnit Klein & Selz
• Author: Mr Jeffrey Greenbaum

Trader Joe's sells jars of Manuka Honey, promoting the product on the front of the label as "100% New Zealand Manuka Honey" or "New Zealand Manuka Honey." When bees make honey, however, they don't just visit one type of flower. That means that, when the honey is made, some of the pollen in the final product comes from sources other than the manuka flower.

In a lawsuit brought in federal court in California, the plaintiffs alleged that Trader Joe's falsely advertised the product as "Manuka Honey," since samples of the products that they tested showed that the product only contained between 57.3% and 62.6% manuka pollen. In 2019, the United States District Court for the Northern District of California dismissed the case, holding that the label wasn't misleading since, consistent with FDA guidance, the chief floral source of the honey was the manuka flower. The plaintiffs appealed, and the Ninth Circuit, relying on the "reasonable consumer" standard, just affirmed the decision.

In order to state a claim for false advertising (under California, New York, and North Carolina law), the plaintiffs were required to demonstrate that the label is likely to be misleading to a "reasonable consumer." In order to meet this standard, the plaintiff must prove "more than a mere possibility that the seller's label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the reasonable consumer standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."

The Ninth Circuit acknowledged that there is some ambiguity as to what the "100%" means in the phrase "100% New Zealand Manuka Honey." Does it mean that the product is all made of honey, all imported from New Zealand, or all derived from the manuka flower? In light of this ambiguity, the court wrote that "reasonable consumers would necessarily require more information before they could reasonably conclude Trader Joe's label promised a honey that was 100% derived from a single, floral source."

In order to analyze whether the ambiguity in the label would be likely to mislead a reasonable consumer, the court adopted the reasoning of the lower court, which held that it was necessary to consider other information readily available to consumers that could easily resolve the alleged ambiguity. The court wrote, "deceptive advertising claims should take into account all...