No More Misleading Advertising Class Actions?

The ideal class action lawsuit is a case in which there are many similarly placed people who have been injured or who suffered a loss from the same cause, and in the same way, but where few or none of them have suffered sufficient injury to make individual lawsuits worthwhile. If you say that quickly, without giving it a great deal of consideration, misleading advertising seems to be a classic case for such actions. Thousands, perhaps millions, of consumers may have seen the same advertisement and purchased the same product - perhaps all from the same vendor. None of them are likely to have a sufficient loss to make an individual claim worthwhile. But despite the superficial attractiveness of class actions for misleading advertising, motions for certification have often proven unsuccessful.1

A recent decision by the Supreme Court of British Columbia, which involved a claim under the BC Business Practices and Consumer Protection Act (BPCPA), explains why we may see few such further attempts.2 The Energy Brands case involved an allegation that the marketing and labels for "Vitaminwater" were contrary to the provision of the BPCPA, which prohibits deceptive practices. The allegation was, in essence, that the marketing and labels were misleading because they failed to disclose the considerable amount of sugar added to this "vitamin" product.

The court refused to certify the case as a class action for several reasons. Its key ruling was on the requirement of "commonality": the court held that the issue of whether any given representation induced a specific consumer to purchase a product will almost always be a matter for individual inquiry, and that consequently there were not sufficient common issues to justify a class action. The court noted:

There is of course, no evidence that all consumers were misled, at all times, in respect of each and every consumer transaction in question. No such evidence would be possible. Yet the relief sought by the plaintiff in the context of the plaintiff's arguments for potential remedies would practically amount to such a conclusion. Otherwise there would be no utility in the declaration sought. (¶125)

In the circumstances of this case, reliance on the various representations whether alone or in combination (as the plaintiff asserts) is inherently individual, as is any potential claim for damage or loss. (¶128)

In my view similar reasoning [to that in the Singer case3] applies in this case. As I have already...