Bruton Revisited: The Ninth Circuit Reconsiders Its Outlier Decision in Baby-Food Class Action

This past April, the Ninth Circuit issued a remarkable opinion in a case called Bruton v. Gerber Products Co. (No. 15–15174, 2017 U.S. App. LEXIS 6756, Apr. 19, 2017). If taken seriously, that opinion could have exposed virtually all manufacturers who sell products in California to massive liability for making undisputedly true claims about their products. Fortunately, yesterday, the Ninth Circuit changed its mind and issued a revised decision distancing itself from the unprecedented liability theory it initially endorsed. That is good news for manufacturers, for commerce, and for our legal system.

Bruton was a class action brought by a mother who alleged that the labels on certain Gerber baby-food products bore unlawful claims about nutrient content and healthfulness, e.g., “As Healthy As Fresh.” Notably, Bruton did not allege that any of these claims was actually false — e.g., that Gerber’s baby food was not “As Healthy As Fresh.”

Instead, she alleged (1) that these claims, even if true, were prohibited by FDA labeling regulations; and (2) that the presence of these (true) statements on Gerber’s labels misled consumers to believe that Gerber’s baby food was “of a higher quality” than other, competing products that complied with FDA regulations by abstaining from such claims. Put more simply, Gerber’s true claims about nutrient content were allegedly transmuted into misleading comparative claims of superiority solely by virtue of other manufacturers’ silence.

The district court granted summary judgment in Gerber’s favor, holding that Bruton had failed to adduce any evidence that a substantial proportion of reasonable consumers actually drew such an implicit comparison.

In its original April opinion, the Ninth Circuit reversed by a 2–1 vote. In an unpublished opinion, the majority recognized that Bruton’s theory of deception was “unusual,” but concluded that it was “viable” and “comport[ed] with common sense”:

Doubtless, Bruton’s theory of deception is unusual. But even technically correct labels can be misleading …. Here, it may be literally true that Gerber’s products are “As Healthy As Fresh,” but due to external facts — that Gerber[’s] competitors [abstain from] making the same claim — Gerber’s labels mislead in their implications.
Bruton’s theory of deception comports with common sense. Shoppers in a supermarket aisle look for cues about quality in the products they buy. If a shopper sees two products on a shelf and one says “Supports Healthy Growth & Development,” while the other makes no similar claim and is cheaper, a likely inference is that the first product will be viewed as healthier, explaining why it costs more. If the products had been of the same quality, then competitive pressures would have driven the maker of the second product to use the same attractive label …. But when the maker of one product complies with a ban on attractive label claims, and its competitor does not do so, the normal assumptions no longer hold, and consumers will possibly be left deceived.

The panel majority went on to hold that, contra the district court, Bruton had adduced sufficient evidence for a fact-finder to conclude that reasonable consumers would draw such an implicit comparison. The only “evidence” that Bruton had proffered were the relevant product labels themselves; Bruton’s testimony that she was deceived; and two cease-and-desist letters from the FDA. Bruton had adduced no consumer surveys, no testimony from other consumers, and no other evidence of how an objective “reasonable consumer” would have responded. Yet the majority deemed this “sufficient evidence” to proceed to trial.

In dissent, Judge O’Scannlain “agree[d] with the district court that the record d[id] not contain sufficient evidence upon which a rational juror could conclude that a reasonable consumer would be deceived.” In his view, Bruton was required to “provide some evidence that reasonable consumers would see [Gerber’s] truthful nutritional statements about [its] products and be deceived into thinking that [those] products are somehow better than other products that are the same nutritionally but which did not have the label statements.” Yet she did not provide any such evidence.

At the time, my colleagues and I pointed out how extreme an outlier the original Bruton decision was. If the decision was taken literally, then every express labeling or advertising claim would also convey an implicit claim of superiority to other products that do not make the same claim. For example, when a manufacturer claims that its cereal is “sugar free,” it would no longer just be making a claim about its own product’s sugar content; it would now also be implicitly claiming superiority to other, competing cereals that say nothing about their sugar content. If it turns out that one or more of those competing cereals are also sugar free, then according to the original Bruton decision, the first manufacturer will have made an actionable misrepresentation.

To our knowledge, no other court had ever endorsed this “implicit comparison” theory — for obvious reasons. Taken to its logical ending point, no manufacturer could ever safely tout any product feature in its labeling or advertising unless (1) its product were literally the only one on the market that possesses that feature, or (2) every other product on the market that could make such a claim already did. And what made the original Bruton decision even worse was the panel majority’s willingness to let the plaintiff proceed to trial on her “unusual” theory of deception with no evidence whatsoever that any significant number of reasonable consumers actually drew the allegedly misleading comparison alleged.

Understandably, Gerber moved the Ninth Circuit to reconsider its decision. Gerber chose to focus not on the breathtaking consequences of Bruton’s novel theory of deception, but on the panel majority’s apparent misapprehension of the record.

Gerber noted that the evidence adduced below showed that its competitors made the very same (supposedly unlawful) product claims that Gerber did, and that at least one of Gerber’s competitors had received an “almost identical” FDA warning letter . Thus, even if competitors’ silence could sometimes transform a manufacturer’s true claims into misleading implicit comparisons, that could not possibly have happened in this case.

Moreover, Gerber pointed out, there was “no evidence” in the record to support the panel majority’s “common sense” conclusion that consumers will assume that a product that makes a given claim is superior to all other products that do not make that claim. Gerber observed that manufacturers sometimes choose — for whatever reason — to omit attractive label claims (e.g., “No Sugar Added”) that would be true and accurate if made. In fact, the evidence before the district court contained examples of that very phenomenon. Reasonable consumers may well understand this. As such, they may very well not draw an “implicit comparison” based on competing products’ failure to make the same claim.

The Ninth Circuit was evidently convinced. Yesterday, the panel withdrew its prior opinion and issued a new one that unanimously affirmed the district court’s grant of summary judgment to Gerber as to Bruton’s claims of consumer deception.

Gone was the majority’s statement that Bruton’s unprecedented implied-comparison theory “comports with common sense.” And gone was the majority’s evidence-free discussion of what goes through shoppers’ minds in the supermarket aisle. Instead, the panel stated merely that Bruton’s theory “may be viable.” It did not need to decide that question, however, because “even assuming the validity of Bruton’s theory, the record [did] not include sufficient evidence to create a genuine dispute of material fact for trial as to consumer deception under her theory.”

Again, the only arguably relevant evidence in the record was (1) the labels of Gerber’s products and those of certain competing products; (2) Bruton’s own testimony that she was deceived; and (3) the two FDA warning letters. But the labels of Gerber’s competitors “d[id] not, as Bruton’s theory of deception would require, avoid [the challenged] label claims.” In fact, “they ma[de] many of the same [allegedly] illegal claims as Gerber’s labels.” Meanwhile, Bruton’s testimony was “vague,” “uncorroborated,” and “self-serving.” And the FDA warning letters were “informal and non-binding” and did not support the conclusion that Gerber’s competitors were innocent of regulatory violations. This was not enough to get to trial, even accepting the viability of Bruton’s implied-comparison theory of deception.

The Bruton majority’s change of heart is good news for all manufacturers who sell their products in California. No longer is there any authority for the radical theory that straightforward, non-comparative label claims always entail an implicit claim of superiority to competing products that do not make the same claims. Thus, manufacturers of sugar-free foods (for example) should now be able to make the truthful claim that their products are “sugar free” without having to worry that their competitors’ silence will somehow transform their truthful statements into deceptive comparisons. At an absolute minimum, in order to get to trial, would-be class-action plaintiffs should have to come forward with probative evidence that reasonable consumers actually perceive such an implicit comparison in the case at hand.

Hard to argue with that.

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This article is for general informational purposes only and should not be construed as specific legal advice. This may constitute attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.