DuraBlend leather-ish label not misleading

Razo v. Ashley Furniture Indus., Inc., No. 17-56770, 2019 WL
5543849, — Fed.Appx. —- (9th Cir. Oct. 28, 2019)
Ashley preserved its summary judgment win in this putative
class action asserting the usual California claims against furniture with
leather-ish components.  Under the reasonable
consumer test, representations must be viewed “reasonably and in context” to
determine whether the material as a whole is misleading. A court presumes that
consumers will read “qualifying language [that] appears immediately next to the
representations it qualifies.” However, consumers are not required to “look
beyond misleading representations on the front of the [tag] to discover the
truth … in small print on the side of the [tag].”
 

front: “contents 57% polyurethane, 26% poly/cotton and 17% leather”

back: Durablend is a material that contains ground, pulverized, shredded, reconstituted,or bonded leather [ed. note: sounds delightful!] and is not wholly the hide of an animal and should not be represented as being 100% leather.

Here, the disclosures were “unambiguous and truthful” and on
the front and back of Ashley’s DuraBlend hangtag. Neither of these disclosures was
“hidden or unreadably small,” and the one on the front was “immediately next
to” a list of DuraBlend’s features. [I would have said “immediately below” based on this picture but I doubt that makes any difference.] “A reasonable consumer reading that list of
features would also read those disclosures and discover that DuraBlend is not
genuine leather.” And the disclosures themselves were truthful and not deceptive
(though that was also true of the ingredients list in Williams—the key point
seems to be that the initial message was not “deceptive but arguably corrected
by the disclosures”; rather the initial message was not deceptive in need of
correction at all). The disclosures truthfully stated that DuraBlend (unlike
other imitation products) “contains … leather” “without deceptively
suggesting that DuraBlend contains intact animal hides like genuine leather.
The DuraBlend hangtag explicitly states that DuraBlend is not and should not be
represented as 100% leather. No consumer, reading this disclosure reasonably
and in context, would conclude that DuraBlend is genuine leather.”
Further, Ashley was not responsible for representations made
by a furniture store salesperson about DuraBlend. Claims under California
consumer protection law “cannot be predicated on vicarious liability.” Instead,
only Ashley’s “personal participation in the unlawful practices and unbridled
control” over those deceptive practices could produce liability; this wasn’t
shown.

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