negative inference about other juices from “no sugar added” on D’s juice is implausible

Shaeffer v. Califia
Farms, LLC, 44 Cal.App.5th 1125, No. B291085 (Feb. 6, 2020)
Califia sells a
“100% Tangerine Juice.” The front label includes “100% Tangerine Juice,” “No
Sugar Added,” and “Never From Concentrate.” Shaeffer brought the usual California
claims, alleging that she chose Califia’s Cuties juice over “other, similar
tangerine juices” because its label “stated ‘No Sugar Added’ ” and because “she
is diabetic.” She alleged that the label falsely implied that other, similar tangerine
juices had added sugar. The court thought that wasn’t a reasonable inference
from the truthful statements on the label as a matter of law.  A reasonable consumer was unlikely to make those
inferential leaps, which would make almost any truthful claim about product
attributes “fodder for litigation”: “Assume that a new airline runs an ad with
a tagline, ‘No Hijackers Allowed.’ Is a reasonable consumer likely to infer
that other airlines do allow hijackers and that the new airline is consequently
the safer choice? We think the answer to this question is ‘no.’”  Deceptiveness is usually a factual question,
but not here.
Shaeffer also
alleged that the label was “unlawful” under the UCL because it does not comply
with two of the five prerequisites that must be satisfied before a label may
state “no sugar added” under a federal labeling regulation: (1) “the [product]
that [Cuties Juice] resembles and for which it substitutes”—that is, “100%
tangerine juice”—does not “normally contain added sugars,” and (2) the label
does not also “bear[ ] a statement that it is not ‘low calorie’ or ‘calorie
reduced’ ” and does not “direct[ ] consumers’ attention to the [product’s]
nutrition panel.”  The court rejected the
first argument—although there is a judicial split on this, the court found that
a product cannot substitute for itself. Some courts reason that the
“substitute” food for “juices with no added sugar” are “juices with added
sugar, fruit-flavored soft drinks sweetened with sugar, or other
sugar-sweetened beverages,” but the court didn’t resolve the question of
whether the universe was tangerine juice or some larger class of juices because
there was no allegation that either of these broader universes of foods does
not “normally contain added sugars.”
As for the second, failure
to use a statement disclaiming low/reduced caloric content, Shaeffer didn’t
allege that she relied on the omission of the calorie statment. Shaeffer argued
that “ ‘a presumption, or at least, an inference of reliance arises whenever
there is a showing that a misrepresentation [or omission] is material’ ” and
that the omission of the “not ‘low calorie’ or ‘calorie reduced’ ” statement
from the label was material as a matter of law because its inclusion is
(sometimes) mandated by the federal regulation. Even if this presumption were
relevant to a claim based on unlawfulness and even assuming that it applies to
a named plaintiff as well as to class members, the presumption was rebutted by her
affirmative allegations that she actually relied on other reasons in deciding
whether to buy the juice. Shaeffer also argued that reliance could come from an
omission being “a substantial factor[ ] in influencing [her] decision” to buy a
product, but she didn’t allege that low calorie content was one of many reasons
for her purchase. And her diabetes made sugar material to her, but did not justify
the inference that calorie content mattered.

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