Cheslow v. Ghirardelli Chocolate Co., No. 19-cv-07467-PJH,
— F.Supp.3d —-, 2020 WL 4039365 (N.D. Cal. Jul. 17, 2020) 

Plaintiffs brought the usual California claims against Ghirardelli’s
“Premium Baking Chips Classic White Chips.” They sought to bolster the
plausibility of the complaint by including a consumer survey about whether the labeling
misleads consumers into believing that the product contains white chocolate. 1,278
respondents were asked about one of four products: Ghirardelli’s Classic White
Chips, Nestle Toll House’s Premier White Morsels, Target’s Market Pantry White
Baking Morsels, and Walmart’s White Baking Chips, e.g., “Based on your review
of this package, do you think that this product contains white chocolate?” 

According to the results, 91.88% of respondents indicated
that they believed the product contained white chocolate. In response to “If,
after purchasing this Product, you learned that the Product contained no white
chocolate or chocolate of any kind, would you be less or more satisfied with
you purchase?” 64.69% of respondents answered that they would either be “much
less satisfied” or “somewhat less satisfied.” Similar percentages responded
that they would be much or somewhat less likely to purchase the product again. 

Each named plaintiff also alleged with greater specificity
than in the first complaint the reasons why they were deceived by the packaging
and why they relied on the product’s package. “For example, Cheslow desired
white chocolate chips to bake holiday cookies, bars, and brownies and found the
product in a section of a Target store labeled ‘chocolate chips.’” Plaintiffs
also alleged facts about the history of chocolate and the attributes of white
chocolate to support the allegation that chocolate is perceived to be a unique,
irreplaceable product and that reasonable consumers do not think they are
purchasing a “cheap knock-off pretending to be chocolate.” 

None of this worked.

In dismissing the previous version of the complaint, the
court held that “white” in “white chips” was a color reference, so “it would
not be appropriate to base liability off of a misunderstanding of that word.”
[Ah, those silly consumers—not misled, but just misunderstanding.] Likewise,
for the images of baking chips and cookies with chips, “it would be
unreasonable to draw a specific qualitative message about a product from an
image on that product.” Since there was nothing deceptive on the front of the
package, plaintiffs couldn’t reasonably ignore the ingredients label, which didn’t
include the words chocolate or cocoa. The placement of the product in the
grocery aisle wasn’t alleged to be under defendant’s control, and anyway it wasn’t
reasonable to draw any conclusion from its placement. 

The court declined to revisit its holding that “white”
definitely means a color, no matter what the context (I assume it would be
happy to get a “flat white” that was a smooth cup of milk), and so considered
the new allegations in isolation. 

Citing Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225
(9th Cir. 2019), which dealt with the meaning of “diet,” Ghirardelli argued
that the court should reject the survey. The court agreed. Just as, survey
notwithstanding, “a reasonable consumer would still understand ‘diet’ in this
context to be a relative claim about the calorie or sugar content of the
product,” it was still the case that understanding “white” in “white chips” to
mean “white chocolate” was unreasonable. So Becerra posed a legally
identical question: “whether a consumer survey can shift the prevailing
reasonable understanding that white chips does not include chocolate.” [Where
does the “prevailing” understanding come from? Prevailing here means winning,
not widespread—reasonableness as courts implement it is a normative concept.
But being explicit about that is a bit embarrassing for a system that is supposedly
dedicated to consumer protection. My own view about the reasonable consumer
construct is that it should be more empirical in cases like this one, as “[a]
drunken man is as much entitled to a safe street as a sober one, and much more
in need of it,” Robinson v. Pioche, Bayerque & Co., 5 Cal. 460 (1855).]  

The court noted that a survey can bolster a plausible claim but
can’t make an implausible claim plausible. [No epistemological modesty here,
even on a motion to dismiss! I should be clear: this is a readily available
reading of Becerra; the court here isn’t going off on a frolic of its
own. That’s just a problem with a standard that says that likely deception has
to be alleged but then rejects evidence of actual consumer reaction—the magic
happens where the court posits, without saying outright, that a substantial–here, nearly unanimous–majority of consumers are unreasonable in what they think words mean, and
therefore marketer exploitation of their “misunderstanding” is acceptable.] 

Anyway, the survey was bad because it only showed respondents
the front panel of the packages; consumers aren’t entitled to disregard the
ingredient list in the absence of a deceptive front panel.

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