“Hawaiian” plus imagery isn’t deceptive indication of origin (or is it?)

Maeda v. Kennedy Endeavors, Inc., No. 18-00459 JAO-WRP, 2019
WL 4544272 (D. Hawai’i Sept. 19, 2019)
Kennedy sells “Hawaiian” brand snacks; plaintiffs alleged
that the name and packaging misled them into thinking that the snacks were made
in Hawai’i from local ingredients, in violation of Hawai’i and California law.  (They’re made in Washington state, which it
says on the back of the package.) Kennedy argued that its uses of “Hawaiian”
and Hawai’i imagery were puffery.  The
court found that, for purposes of a motion to dismiss, plaintiffs pled deceptiveness
to a reasonable person for the Hawai’i claims, except with respect to
injunctive relief based on future harm. However, and somewhat puzzlingly, it
reached a different result with respect to California claims (reasoning that there was no Hawai’i precedent about finding lack of deceptiveness on a motion to dismiss).

some of the accused packages with Hawaiian name and imagery
Williams doesn’t require consumers to look at the
back of the package to the nutrition label, but the court distinguished it because
that case involved fruit juice snacks and alleged misrepresentation about
ingredients. This is a case involving alleged misrepresentation about
origin.  The court apparently believes
that “an origination label readily identifies location to correct potential
misconceptions about geographic origin, while an ingredient list requires an
examination to ascertain whether representations about a product are true.” (The
court also said it wasn’t relying on the Washington origin disclosed on the
back, though.)
While the front of the package isn’t necessarily puffery, no
reasonable Californian consumer could be deceived. “Other than the word ‘HAWAIIAN’
there are no assertions, phrases, or claims to assess on the packaging at
issue.” [Kind of depends on what the images imply, doesn’t it?]  The court thought that “Hawaiian” isn’t
general, “[b]ut neither is it a specific assertion or concrete statement about
a product.”  That seems like a misguided
conclusion—there may be some room for dispute about definitions, but origin
statements are treated as factual all the time. Still, the package bore no more
specific identification of a place in Hawai’i as the origin of the products: “merely
referencing Hawaii and its culture on the packaging is not enough on its own to
confuse a reasonable consumer regarding the origin” of these products, without
additional representations. Also, “unlike products such as macadamia nuts or
coffee, chips are not inherently associated with Hawai‘i.”

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