Not worth a hill of beans: can label showing mound of beans plausibly misleads

Beckman v. Arizona Canning Co., 2019 WL 4277393, No. 16-cv-02792-JAH-BLM
(S.D. Cal. Sept. 9, 2019)
If the can shows lots of whole, plump beans, but the
ingredients list puts water first, is there a plausible deception claim? The
court here answers yes. “Unlike the image advertised on the principal display
panel, consumers receive mostly water, with a portion of beans fully submerged
and undetectable at first sight.” Plaintiffs brought the usual California
can with beans

website showing can labels

Actual contents, per pleading

Arizona Canning argued that, of about 361 bean products
listed by the USDA branded food products database, which contains information
provided voluntarily by food producers, at least 15 bean products list water as
a primary ingredient. But that couldn’t be taken to show the existence of an
industry standard, which was a factual dispute.
“Based on an informal survey, Plaintiffs allege that when
consumers were asked to look at a can of Defendant’s Sun Vista Beans, each
consumer expressed a belief that the can was predominantly filled with beans.”  Arizona Canning argued that it was
unreasonable to look at the picture to determine the ingredients, instead of
the ingredients label. Williams v. Gerber Product Co., 552 F.3d 934 (9th Cir.
2008), is a problem for that argument, and plaintiffs alleged that because Sun
Vista Beans are sold in opaque canned containers, consumers depend upon the
product advertisement, label, and the fill of the can to conduct product
comparisons and make purchasing decisions.
The court began with the proposition that “images can
reasonably be interpreted to have various meanings.” Context, “judicial
experience’ and “common sense” all play roles in whether a misleadingness claim
is plausible. Here, the plausible meanings of the image of cooked beans is
either: (1) identifying the type of bean being sold or (2) depicting the can’s
contents. In this specific context, the dehydrated beans in the background and
the placement of the bowl of hydrated beans in the forefront of the image
supported (2), and so did comparing the image of this product with Arizona
Canning’s other bean product – pinto beans with jalapenos – which showed
chopped jalapenos sprinkled throughout the bowl of beans. 
Arizona Canning argued that the image was “a picture of
beans as they are suggested for serving.” “While this interpretation seems
reasonable, it is contrary to the detailed information offered within the
nutrition fact panel, which indicates the primary ingredient is water. For this
‘suggestion’ to be accepted, consumers must drain more than half of the can’s
contents – leaving the consumer with either a smaller serving size or
significantly less servings than represented.”
Unlike the products in other image cases, “beans are not
made up of various heterogenous ingredients.” Thus, a consumer “could
reasonably believe that a can labeled ‘pinto beans,’ with no additional
descriptor, is primarily filled with just that.”
Plaintiffs also alleged that the net weight, serving size,
and number of servings per container were deceptive because, for example, a 29
oz. can of Sun Vista whole pinto beans advertised “about 6 servings.” The label
also defined a serving as one half cup, or 4 oz., which a consumer would think meant
that the can contained 24 oz. beans and 5 oz. water. But that contradicted the
ingredient label. “It is not plausible that a reasonable consumer would believe
the entire 4oz serving consisted of only one ingredient,” but—based on “common
experience”—it was plausible that consumers would believe that one serving of
cooked ready-to serve “pinto beans” “typically does not have the same
consistency as soup.”  Thus, if the
serving size x number of servings listed was relatively close to the can’s
capacity, a consumer could reasonably believe that the can was filled nearly to
capacity with the ingredient advertised and reflected in the name of that
product—here, pinto beans.
Defying Williams, Arizona Canning argued that
consumers should look at the ingredient list. But “most shoppers digest the
information on the back after seeing the pretty picture on the front,” and the entirety
of the advertising had to be considered. Consumers often look for whether
specific ingredients are present or absent, but they are less likely to
consider which ingredient is most predominant, “especially if it appears
obvious from the name of the product or the label’s display panel.”
UCL unfairness: Under the balancing test (more often used in
cases brought by consumers, like this one), “courts must examine the practice’s
impact on its alleged victim, balanced against the reasons, justifications and
motives of the alleged wrongdoer. In short, this balancing test must weigh ‘the
utility of the defendant’s conduct against the gravity of the harm to the
alleged victim.’” The harm was selling consumers a less-than-half-full product,
depriving them of the benefit of the bargain. Arizona Canning argued that, if
the case succeeded, food manufacturers would be “unnecessarily stifled from
displaying their product on the label.” The Court didn’t agree. “Countless food
manufactures have successfully displayed and marketed their product without
consumer confusion or a likelihood of deception… [A]ny utility derived from
Defendant’s practice and desire to display an image of a ‘suggested serving’ of
beans, that omits or abates the predominant ingredient, is outweighed by the
alleged negative impact on Plaintiffs and other putative class members.”
Under the competing tethering test (usually used when claims
are brought by competitors, “unfair means conduct that threatens an incipient
violation of an antitrust law or violates the policy or spirit of one of those
laws because its effects are comparable to or the same as a violation of the
law…”  Ignoring the antitrust part of
this, plaintiffs alleged (and the court agreed) that they also satisfied the
tethering test because defendants violated the spirit of the FDCA and the Sherman
Food, Drug, and Cosmetic Law. Arizona Canning rejoined that, as a matter of
public policy, it is common for food/beverage products to indicate items on the
principal display panel that are not the predominant ingredient. That’s true,
but even then, false advertising is not ok, and complying with the FDCA isn’t
enough to preclude a false advertising claim. “It is quite possible to comply
with FDA regulations and still violate the policy or spirit underlying those

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