[SS] Prairie Foods’ “Complete Blueberry Pomegranate” cereal packaging violates California’s ban against “untrue or misleading” advertising. Therefore, the Court should deny Prairie Foods’ motion to dismiss Sabach v. Prairie Foods, Inc. because there are “enough facts to state a claim to relief that is plausible on its face." Williams v. Gerber Prods. Co., 523 F.3d 934, 936 (9th Cir. 2008).
[RS] Under Cal. Bus. & Prof. Code § 17500 (2012), advertising is “untrue or misleading” when it includes claims that are likely to deceive a reasonable consumer without explicit and conspicuous qualifying statements nearby. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995).
[RP] Cal. Bus. & Prof. Code § 17500 states, “It is unlawful for any . . . …show more content…
Freeman, 68 F.3d at 289-90; Compl. Ex. A. It could be argued that “fruit flavored clusters” indicates that the title depicts the “characterizing flavor” of the product. See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10. However, the lack of real fruit is not expressly stated, and the word “flavored” does not necessarily indicate the product’s lack of fruit to a layperson. Freeman, 68 F.3d at 289; See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10 (Packaging lawful because it contains explicit statement “CONTAINS 5% JUICE” as well as “flavored” qualifier); Compl. Ex. A. Additionally, the qualifier is unreadably small and lower-case. Freeman, 68 F.3d at 289; See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10 (Qualifier adequate because it is large and capitalized); Compl. Ex. A. This also makes the qualifying language significantly smaller than the title so that a reasonable consumer could ignore it. See Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077, at *32 (C.D. Cal. Apr. 11, 2011) (Significant size difference between product title “Guacamole” and “flavored dip” qualifying statement made packaging …show more content…
Freeman, 68 F.3d at 289. This is especially true here, where the cereal display case only showed the fronts of the boxes and sat “next to the cash register” so students did not have time to view nutritional information before paying. Williams, 523 F.3d at 939-40 (Reasonable consumers expect ingredients list to confirm other packaging elements, not “provide a shield for liability” while rest of package is misleading); Day v. AT & T Corp., 74 Cal. Rptr. 2d 55, 60-61 (Ct. App. 1998) (Advertising only valid if relevant information is available before consumers pay); Compl. ¶
[RS] Under Cal. Bus. & Prof. Code § 17500 (2012), advertising is “untrue or misleading” when it includes claims that are likely to deceive a reasonable consumer without explicit and conspicuous qualifying statements nearby. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995).
[RP] Cal. Bus. & Prof. Code § 17500 states, “It is unlawful for any . . . …show more content…
Freeman, 68 F.3d at 289-90; Compl. Ex. A. It could be argued that “fruit flavored clusters” indicates that the title depicts the “characterizing flavor” of the product. See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10. However, the lack of real fruit is not expressly stated, and the word “flavored” does not necessarily indicate the product’s lack of fruit to a layperson. Freeman, 68 F.3d at 289; See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10 (Packaging lawful because it contains explicit statement “CONTAINS 5% JUICE” as well as “flavored” qualifier); Compl. Ex. A. Additionally, the qualifier is unreadably small and lower-case. Freeman, 68 F.3d at 289; See McKinniss, 2007 U.S. Dist. LEXIS 96108 at *10 (Qualifier adequate because it is large and capitalized); Compl. Ex. A. This also makes the qualifying language significantly smaller than the title so that a reasonable consumer could ignore it. See Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077, at *32 (C.D. Cal. Apr. 11, 2011) (Significant size difference between product title “Guacamole” and “flavored dip” qualifying statement made packaging …show more content…
Freeman, 68 F.3d at 289. This is especially true here, where the cereal display case only showed the fronts of the boxes and sat “next to the cash register” so students did not have time to view nutritional information before paying. Williams, 523 F.3d at 939-40 (Reasonable consumers expect ingredients list to confirm other packaging elements, not “provide a shield for liability” while rest of package is misleading); Day v. AT & T Corp., 74 Cal. Rptr. 2d 55, 60-61 (Ct. App. 1998) (Advertising only valid if relevant information is available before consumers pay); Compl. ¶