By Stephen Gardner
On July 17, a panel of the Ninth Circuit issued a revised opinion in Bruton v. Gerber Products. (I’ve attached the withdrawn opinion here and the new opinion here.) In her lawsuit, Natalia Bruton alleged that “labels on certain Gerber baby food products included claims about nutrient and sugar content that were impermissible under Food and Drug Administration (FDA) regulations incorporated into California law.” Among other claims, Bruton alleged that for Gerber to make a claim that its competitors did not make was likely to trick consumers into believing that Gerber’s products were better than its competitors.
The July 17 opinion held to most of the holdings in the April 19 opinion, but did change on this one claim. The panel held that Bruton had failed to meet her summary judgment burden as to this one claim.
The withdrawn opinion commented that the claim was ”unusual.” I’ve got to agree. I’ve not seen it used in other cases. But that doesn’t mean that it’s not a valid claim.
As the new opinion noted, “Bruton's theory of deception may be viable. The California courts have held that even technically correct labels can be misleading.” Here, the panel determined that Bruton had failed to meet her burden of demonstrating a genuine issue of material fact. Without studying the entire record of the summary judgment at the district court, it’s impossible to comment on this point.
However, what matters more for consumers is that the new opinion repeats three broad holdings in the withdrawn opinion: (1) affirming (contrary to courts in other circuits) that a claim of unjust enrichment can be a standalone claim, (2) refusing to follow the Third Circuit’s creation of a new ascertainability standard in Bayer v. Carrera (the subject of many posts, including this one), and (3) reminding companies that the unlawful prong of the California UCL does not require proof that consumers are likely to be deceived.
None of these three holdings creates new law, but each is important jurisprudence. The first two holdings address (and reject) defense claims that regularly arise in California consumer cases generally, and food cases in particular. The third holding echoes an earlier decision of the Ninth Circuit that “the legislature’s decision to prohibit a particular misleading advertising practice is evidence that the legislature has deemed that the practice constitutes a ‘material’ misrepresentation, and courts must defer to that determination.” Hinojos v. Kohl's Corp., 718 F.3d 1098, 1107 (9th Cir. 2013).
Overall, a good day for consumers and a pretty good day even for Bruton.