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Goldfish Crackers with “0g Sugars” Not Plausibly Healthy

Posted by James Juo | Dec 27, 2022 | 0 Comments

State consumer-protection statutes typically require some showing that members of the public have been deceived. For example, the Colorado Consumer Protection Act (“CCPA”) is the requirement that the unfair or deceptive trade practice has a significant impact on the public. C.R.S. § 6-1-105; Hall v. Walter, 969 P.2d 224, 235 (Colo. 1998); Peterson v. USAA Life Ins. Co., 353 F. Supp. 3d 1099, 1112 (D. Colo. 2018).

California's consumer-protection statutes are governed by the “reasonable consumer” test which requires showing members of the public are likely to be deceived. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1228-29 (9th Cir. 2019) (“When considering the term in its proper context, no reasonable consumer would assume that Diet Dr Pepper's use of the term “diet” promises weight loss or management.”); see also Bank of West v. Superior Court, 2 Cal.4th 1254, 10 Cal.Rptr.2d 538, 833 P.2d 545, 553 (1992). This requires more than a mere possibility that a label “might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner.” Lavie v. Procter & Gamble Co., 105 Cal.App.4th 496, 129 Cal. Rptr. 2d 486, 495 (2003). Rather than a “least sophisticated consumer” standard; the reasonable consumer standard requires a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id.

Deceptive Goldfish Crackers Label?

In Cleveland v. Campbell Soup Co., __ F.Supp.3d __, 2022 WL 17835514, No. 21-cv-06002-JD (N.D. Cal. Dec. 21, 2022), Plaintiffs alleged they were “duped” into buying Goldfish crackers as a “healthy” and reduced-calorie snack because certain Goldfish packages contained a “0g TOTAL SUGARS” label. Plaintiffs presented claims for consumer deception under California and New York law, asserting the “0g Sugars” label communicates to consumers that the crackers are low-calorie and good for weight control.

          During the prior motion proceedings, the Court expressed serious doubt about the plausibility of this theory. . . . To start, the statement “0g Sugars” does not, on its face, say anything about calories. The world is full of foods that are low-sugar and not low-calorie. Nuts, butter, olive oil, avocados, and many cheeses come immediately to mind as foods widely understood to be low in sugar but relatively high in calories. Consequently, it is not plausible to contend that a reasonable consumer would necessarily equate 0g sugars with reduced calories. That is particularly true here, where the product labels emphasize “cheddar” and “pizza” flavors, two foods that experience and common sense indicate are not good for calorie reduction purposes, “blasted” or not.

The Court noted that it previously had upheld the plausibility of food deception claims in several other circumstances, but that this case was different because the calorie count per serving of the crackers was plainly visible to consumers on the front of the package, and so no reasonable consumer could plausibly believe that Goldfish were a health or reduced-calorie food.

Other Nutritional Data Points, such as Calorie Count Label

The “0g Total Sugars” statement is one of four nutrition data points readily visible on the face of the package. Indeed, the first data point was the calorie count which is emphasized in larger font than the other points, and plainly advises consumers that there are “140 Calories” per 55 pieces of Goldfish, and 0 grams of sugar.

Professor Tushnet echoed the Court's sentiment that “[t]he labels underscore the implausibility.”

A consumer does not need to read any fine print, turn the package around for details, or do anything other than look at the front label to obtain the calorie count for a cracker serving. The label makes it inherently implausible “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances,” would understand “0g Total Sugars” to mean “low or reduced in calories,” as plaintiffs would have it. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225, 1228-29 (9th Cir. 2019) (quotations and citation omitted). As our circuit put it in Moore v. Trader Joe's Company, 4 F.4th 874, 884 (9th Cir. 2021), plaintiffs' “alleged assumption is not just ‘unreasonable' or ‘fanciful.' It is implausible.”

The Court also discounted “studies and surveys” cited by Plaintiffs because they were “generic commentaries about sugar consumption and health concerns” that was “of little value” for a label that says “0g Sugars” right next to a larger-sized calorie disclosure. Furthermore, “it is difficult to tell what questions the survey asked to reach its conclusions,” and “[t]he survey cannot, on its own, salvage” plaintiffs' claims. Becerra, 945 F.3d at 1230–31.

In the specific context of a “0g Sugars” label next to the actual calorie count and other nutritional information, all of the Plaintiffs' reduced-calorie claims were dismissed as implausible.

Literal Falsity of “0g Sugars” in Goldfish Crackers?

As for the alleged literal falsity of claiming “0g Sugars,” the Court allowed Plaintiffs to file an amended complaint to allege that Goldfish crackers “actually contain sugar.” But the Court also required removal of all references to the dismissed “not reduced in calorie” theory and all claims based on that theory.

The attorneys at Thomas P. Howard, LLC litigate trademark cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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