Ninth Circuit Reverses Dismissal of Case Against Gerber for Deceptively Marketed Fruit Snacks

Parents who purchased Gerber "Fruit Juice Snacks" brought a class action against Gerber alleging that its Fruit Juice Snacks product contained no fruit juice from oranges, peaches, strawberries or cherries as illustrated on the packaging. Instead it contained only grape juice from concentrate. The lawsuit also complained the product contained mostly corn syrup and sugar rather than juice. Claims were brought under California's false advertising and unfair competition statutes, and were governed by a "reasonable consumer" test.

Under the reasonable consumer standard, Appellants must "show that 'members of the public are likely to be deceived.'" In reversing the district court, the United States Court of Appeals in San Francisco (Ninth Circuit) held that "[t]here are a number of features of the packaging Gerber used for its Fruit Juice Snacks product which could likely deceive a reasonable consumer." "We disagree with the district court that reasonable consumers should be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box."

Whether a practice is deceptive, fraudulent, or unfair is generally a question of fact which requires 'consideration and weighing of evidence from both sides' and which usually is not subject to a motion to dismiss.

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