9th Circuit burps up a correction to recent Gerber case

Bruton v. Gerber Prods. Co., No. 15-15174, 2017 WL 3016740,
— Fed. Appx. — (9th Cir. Jul. 17, 2017)
On a petition for rehearing, the previous
panel opinion and partial dissent
were withdrawn and replaced with the
following, still partially reviving plaintiff’s consumer protection class
action but getting rid of a deception theory, as the dissent had wanted.
Bruton filed a putative class action against Gerber,
alleging that labels on certain Gerber baby food products included claims about
nutrient and sugar content that violated FDA regulations as incorporated into
California law.
Again, the court of appeals rejected the district court’s
ruling that the class wasn’t ascertainable. There is no separate
“administrative feasibility” requirement for class certification.
However, there was no genuine dispute of material fact on
Bruton’s claims that the labels were deceptive in violation of the UCL, FAL,
and CLRA.  Her theory of deception was
that the combination of “healthy” claims on Gerber’s products, in violation of
FDA regulations, and the lack of claims on legally compliant competitors’
products made Gerber’s labeling likely to mislead the public into believing
that Gerber’s products were of a higher quality than its competitors’ products.
This theory “may be viable,” since even technically correct
labels can be misleading under California law. 
However, Bruton didn’t produce enough evidence to survive summary
judgment; her own vague, uncorroborated, and self-serving testimony was
insufficient.  Further, the record
included Gerber’s and some competitors’ labels, but it showed that those
competitors made many of the same allegedly illegal claims. “A reasonable jury
comparing the labels side by side could not rationally conclude that Gerber’s
labels were likely to deceive members of the public into thinking that Gerber’s
products were of a higher quality than its competitors’ products that made the
same type of claims.”  Likewise, FDA
warning letters (informal and non-binding) didn’t indicate that competitors
complied with the law.
However, the district court erred in granting summary
judgment to Gerber on Bruton’s claims that the labels were unlawful under the
UCL. The unlawfulness prong “borrows” predicate legal violations and treats
them as independently actionable under the UCL. “The best reading of California
precedent is that the reasonable consumer test is a requirement under the UCL’s
unlawful prong only when it is an element of the predicate violation.” The
predicate violation here was of California’s Sherman Law, which itself
incorporates standards set by FDA regulations, and those standards didn’t
include any requirement of likely deception. (Though query how that works with
modern First Amendment jurisprudence.)

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