False advertising litigation involving “natural” claims is one of the most frequent false advertising disputes. A case involving Kern’s fruit juices, distributed by Vilore Foods Co. and Arizona Canning Company, is an example of how the design of a litigation survey can help determine the outcome of class certification.
“100% Natural” and “Made With Whole Fruit”: Natural Claims Allegations
Beverage companies Vilore Foods Co. and Arizona Canning Company were accused of false and misleading advertising by a proposed class of consumers in the Central District of California. The defendants distribute and advertise Kern’s juices under the name “nectar.”.
The plaintiffs asserted that claims of “100% Natural” and “made with whole fruit” violated federal and state false advertising laws because the beverages contained dl-malic acid, an ingredient plaintiffs characterized as “unnatural.” The lawsuit, originally filed in May 2020, was on its third amended complaint when a judge dismissed a request for class certification. The ruling was driven in part by deficiencies in the plaintiffs’ expert survey.
Why the Litigation Survey Failed to Support Class Certification
The plaintiffs sought to certify California and national classes of consumers who purchased the fruit juices. To show commonality between class members, one prerequisite for class certification, they relied on a survey conducted by a plaintiffs’ expert who measured, in the court’s words, “the importance consumers placed on certain attributes when deciding whether to purchase juice-based beverages.”
The survey concluded that consumers were willing to pay approximately 29% more for a Kern’s product priced at $0.99, which did not indicate it contained artificial flavors, and approximately 30% less for a product that did contain artificial flavors.
The judge found that the survey did not address whether potential class members were likely to be deceived by the products’ front labels. In particular, the judge faulted the survey for not addressing whether the labels would lead consumers to believe the products contained no artificial flavors, or only natural ones. The court ruled that the survey did not measure any likelihood of confusion stemming from the products’ front labels and could not establish such deception on a classwide basis.
Methodological Flaw: Measuring Preference Instead of Deception
The survey had a fundamental error. Instead of assessing whether consumers would be deceived by the front-label claims at issue, the survey measured consumer price sensitivity and purchase preferences in response to artificial flavoring disclosures. A litigation survey supporting class certification must address whether the alleged misrepresentation is capable of deceiving consumers on a classwide basis. A conjoint or willingness-to-pay analysis does not substitute for a properly designed consumer survey to measure deception.
The Role of Properly Designed Litigation Surveys in False Advertising Cases
The evidentiary value of a consumer survey depends on whether it is designed to answer the right question. Surveys that measure adjacent issues will likely not satisfy courts. Litigation surveys and rebuttals built around the specific legal standard at issue and designed with methodological rigor from the outset are essential to supporting or defeating class certification and proving or rebutting false advertising claims at trial.
IMS Legal Strategies provides expert consumer research, litigation survey design, and rebuttal services for IP and false advertising matters. Contact our team to discuss your litigation survey needs.
