Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir.

, 2008)

552 F.3d 934

Nakia WILLIAMS, individually and on behalf of all others similarly situated; Rita Tabiu, Plaintiffs-
Appellants,
v.
GERBER PRODUCTS COMPANY, a Michigan corporation, Defendant-Appellee.
No. 06-55921.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 7, 2008.
Filed April 21, 2008.
Amended December 22, 2008.
[552 F.3d 935]

Harold M. Hewell, Hewell Law Firm, APC, San PREGERSON, Circuit Judge:
Diego, CA, for the plaintiffs-appellants. Named class members Nakia Williams and Rita
Bryan Merryman, Francisco Cabada, White & Tabiu ("Appellants"), parents of small children,
Case LLP, Los Angeles, CA, for the defendant- brought a class action against Gerber Products
appellee. Company ("Gerber"). An amended complaint alleged
Appeal from the United States District Court for that Gerber deceptively marketed its "Fruit Juice
the Southern District of California; Jeffrey T. Miller, Snacks" ("Snacks") a food product developed for
District Judge, Presiding. D.C. No. CV-05-01278- toddlers. The district court granted Gerber's motion to
JTM. dismiss under Rule 12(b)(6). We have jurisdiction
Before: HARRY PREGERSON, GLENN L. under 28 U.S.C. § 1291, and we reverse.
ARCHER, JR.,* and KIM McLANE WARDLAW, I. BACKGROUND
Circuit Judges. Appellants bought Gerber's Fruit Juice Snacks
ORDER DENYING PETITION FOR because they sought healthy snacks for their children
REHEARING EN BANC AND AMENDING (ages two and three) and because they trusted the
OPINION AND AMENDED OPINION Gerber name. Fruit Juice Snacks are sold as part of
ORDER Gerber's "Graduates for Toddlers" product line.
The panel voted to deny the petition for Appellants' amended complaint alleged eight causes
rehearing and the petition for rehearing en banc. A of action, including tort claims for misrepresentation
judge of our court then called for a vote on whether and breach of warranty, as well as claims under
to rehear this case en banc. The en banc call failed California's Unfair Competition Law, Cal. Bus. &
because a majority of the nonrecused active judges Prof.Code § 17200 et seq., and California's Consumer
voted against en banc consideration. Fed. R.App. P. Legal Remedies Act, Cal. Civil Code § 1750 et seq.
35. Therefore, the petition for rehearing en banc is Appellants challenged five features of the packaging
denied. Future petitions for panel rehearing and used by Gerber to sell its Fruit Juice Snacks.1
future petitions First, Appellants challenged the use of the words
[552 F.3d 936] "Fruit Juice" juxtaposed alongside images of fruits
for rehearing en banc will not be entertained. such as oranges, peaches, strawberries, and cherries.
Furthermore, the Opinion filed on April 21, Appellants contended that this juxtaposition was
2008, is hereby amended as follows: deceptive because the product contained no fruit juice
Starting at the top of slip opinion page 4197. from any of the fruits pictured on the packaging and
523 F.3d at 940, there are three sentences. Eliminate because the only juice contained in the product was
the first sentence entirely. Move the second sentence white grape juice from concentrate. Second,
so that it follows the third sentence, so that the two Appellants challenged a statement on the side panel
sentences will remain at the top of page 4197. Those of the packaging describing the product as made
two sentences will now read as follows: "with real fruit juice and other all natural
We do not think that the FDA requires an ingredients," even though the two most prominent
ingredient list so that manufacturers can mislead ingredients were corn syrup and sugar. Third,
consumers and then rely on the ingredient list to Appellants challenged a separate statement on the
correct those misinterpretations and provide a shield side panel; namely, that Snacks was "one of a variety
for liability for the deception. Instead, reasonable of nutritious Gerber Graduates foods and juices."
consumers expect that the ingredient list contains Fourth, Appellants challenged Gerber's decision to
more detailed information about the product that label the product a "snack" instead of a "candy,"
confirms other representations on the packaging. "sweet," or a "treat." Finally, Appellants alleged that
OPINION

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 Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir., 2008)

the phrase "naturally flavored" did not comply with the district court did not address the issue, and we
applicable type size requirements.2 decline to decide this issue in the first instance based
[552 F.3d 937] on arguments made in an answering brief,
Gerber filed a motion to dismiss under Rule particularly where nothing in Appellants' complaint
12(b)(6), which the district court granted. The district suggested that they were attempting to directly
court found that Gerber's statements were not likely enforce violations of the FDCA.
to deceive a reasonable consumer, particularly given C. The District Court's Decision to Grant the
that the ingredient list was printed on the side of the Motion to Dismiss
box and that the "nutritious" claim was non- The district court granted Gerber's motion to
actionable puffery. Appellants timely appealed. dismiss all of Appellants' claims.
II. STANDARD OF REVIEW [552 F.3d 938]
"A dismissal for failure to state a claim pursuant On Appellants' statutory claims (under California's
to Federal Rule of Civil Procedure 12(b)(6) is Unfair Competition Law and Consumer Legal
reviewed de novo. All allegations of material fact in Remedies Act), the district court found that the
the complaint are taken as true and construed in the Snacks' packaging was "not likely to deceive a
light most favorable to the plaintiff." Stoner v. Santa reasonable consumer as a matter of law." Williams v.
Clara County Office of Educ., 502 F.3d 1116, 1120 Gerber Products Co., 439 F.Supp.2d 1112, 1117
(9th Cir.2007) (internal citations and quotation marks (S.D.Cal.2006). It similarly dismissed the fraud and
omitted). warranty claims, holding that "the challenged
III. DISCUSSION statements and images, viewed in context, are truthful
A. Appellants' Deficient Opening Brief or constitute non-actionable puffery." Id. at 1118.
Gerber argues that this appeal should be California's Unfair Competition Law ("UCL")
dismissed with prejudice because of deficiencies in prohibits any "unlawful, unfair or fraudulent business
the opening brief. We have the discretion to dismiss act or practice." Cal. Bus. and Prof.Code § 17200.
appeals because of deficiencies in the briefs. See N/S The false advertising law prohibits any "unfair,
Corp. v. Liberty Mutual Ins. Co., 127 F.3d 1145, deceptive, untrue, or misleading advertising." Cal.
1146 (9th Cir.1997) (dismissing appeal where brief Bus. and Prof.Code § 17500. "`[A]ny violation of the
omitted standard of review, contained only a handful false advertising law ... necessarily violates' the
of record citations, and exceeded the word limit, and DUCL." Kasky v. Nike, Inc.,27 Cal.4th 939, 119 Cal.
where appellant did not respond to motion to Rptr.2d 296, 45 P.3d 243 (2002) (quoting Comm. on
dismiss); Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Children's Television, Inc. v. General Foods Corp.,
Cir.2007) (dismissing appeal where brief failed to 35 Cal.3d 197, 210, 197 Cal.Rptr. 783, 673 P.2d 660
provide applicable standard of review, made virtually (1983)). California's Consumer Legal Remedies Act
no legal argument, and lacked table of contents, table ("CLRA") prohibits "unfair methods of competition
of authorities, citations to authority, and accurate and unfair or deceptive acts or practices." Cal.
citations to the record). Civ.Code § 1770.
Appellants' opening brief fails to comply with Appellants' claims under these California
the rules of this circuit. The arguments are not well- statutes are governed by the "reasonable consumer"
developed or supported and there are multiple test. Freeman v. Time, Inc., 68 F.3d 285, 289 (9th
technical violations of the rules. Even where we have Cir.1995) ("[T]he false or misleading advertising and
previously dismissed appeals because of deficient unfair business practices claim must be evaluated
briefing, however, we have noted that "we would feel from the vantage of a reasonable consumer." (citation
most uneasy if this were an otherwise meritorious omitted)); Lavie v. Procter & Gamble Co., 105
appeal, which cried out for reversal of the district Cal.App.4th 496, 506-07, 129 Cal.Rptr.2d 486
court's decisions." N/S Corp., 127 F.3d at 1146. Here, (Cal.App. 2003) ("[U]nless the advertisement targets
we believe that Appellants' claim has merit. We have a particular disadvantaged or vulnerable group, it is
also received amicus briefs from the Center for judged by the effect it would have on a reasonable
Science in the Public Interest and from the California consumer.").
Attorney General, which provide additional support Under the reasonable consumer standard,
for Appellants' legal arguments. We thus decline to Appellants must "show that `members of the public
exercise our discretion to dismiss the appeal. are likely to be deceived.'" Freeman, 68 F.3d at 289
B. Gerber's Preemption Argument (quoting Bank of West v. Superior Court, 2 Cal.4th
In Gerber's answering brief, it argues for the first 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545
time that some of Appellants' claims were preempted (1992)). The California Supreme Court has
by the Federal Food Drug and Cosmetic Act recognized "that these laws prohibit `not only
("FDCA"). Because Gerber did not argue this below, advertising which is false, but also advertising

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 Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir., 2008)

which[,] although true, is either actually misleading The facts of this case, on the other hand, do not
or which has a capacity, likelihood or tendency to amount to the rare situation in which granting a
deceive or confuse the public.'" Kasky, 27 Cal.4th at motion to dismiss is appropriate. Here, there are a
951, 119 Cal.Rptr.2d 296, 45 P.3d 243 (quoting number of features of the packaging Gerber used for
Leoni v. State Bar, 39 Cal.3d 609, 626, 217 Cal.Rptr. its Fruit Juice Snacks product which could likely
423, 704 P.2d 183 (1985)). deceive a reasonable consumer. The product is called
A district court should grant a motion to dismiss "fruit juice snacks" and the packaging pictures a
if plaintiffs have not pled "enough facts to state a number of different fruits, potentially suggesting
claim to relief that is plausible on its face." Bell (falsely) that those fruits or their juices are contained
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. in the product. Further, the statement that Fruit Juice
1955, 1974, 167 L.Ed.2d 929 (2007). "Factual Snacks was made with "fruit juice and other all
allegations must be enough to raise a right to relief natural ingredients" could easily be interpreted by
above the speculative level." Id. at 1965. See also 5 consumers as a claim that all the ingredients in the
Charles Alan Wright & Arthur R. Miller, Federal product were natural, which appears to be false. And
Practice and Procedure § 1356 ("[T]he motion [to finally, the claim that Snacks is "just one of a variety
dismiss] is not a procedure for resolving a contest of nutritious Gerber Graduates foods and juices that
between the parties about the facts or the substantive have been specifically designed to help toddlers grow
merits of the plaintiff's case."). up strong and healthy" adds to the potential
Here, the district court based its decision to deception.3
grant the motion to dismiss solely on its own review The district court suggests that "no reasonable
of an example of the packaging. It is true that "the consumer upon review of the package as a whole
primary evidence in a false advertising case is the would conclude that Snacks contains juice from the
advertising itself." Brockey v. Moore, 107 actual and fruit-like substances displayed on the
Cal.App.4th 86, 100, 131 Cal.Rptr.2d 746 packaging particularly where the ingredients are
(Cal.App.2003). California courts, however, have specifically identified." Williams, 439 F.Supp.2d at
recognized that whether a business practice is 1116. We disagree with the district court that
deceptive will usually be a question of fact not reasonable consumers should be expected to look
appropriate for decision on demurrer. See e.g., Linear beyond misleading representations on the front of the
Technology Corp. v. Applied Materials, Inc., 152 box to discover the truth from the ingredient list in
Cal.App.4th 115, 134-35, 61 Cal. Rptr.3d 221 (2007) small print on the side of the box. The ingredient list
("Whether a practice is deceptive, fraudulent, or on the side of the box appears to comply with FDA
unfair is generally regulations and certainly serves some purpose. We do
[552 F.3d 939] not think that the FDA requires an ingredient list so
a question of fact which requires `consideration and that manufacturers can mislead consumers and then
weighing of evidence from both sides' and which rely on the ingredient list to correct those
usually cannot be made on demurrer." (quoting misinterpretations and provide a shield for liability
McKell v. Washington Mutual, Inc., 142 Cal.App.4th for the deception. Instead, reasonable consumers
1457, 1472, 49 Cal.Rptr.3d 227 (Cal.App. 2006))); expect that the ingredient list contains more detailed
Committee on Children's Television, 35 Cal.3d at information about
197, 197 Cal.Rptr. 783, 673 P.2d 660 (finding [552 F.3d 940]
demurrer inappropriate in case where parents alleged the product that confirms other representations on the
deceptive advertising of sugar cereals). packaging.
Decisions granting motions to dismiss claims We reject Gerber's assertion that the district
under the Unfair Competition Law have occasionally court concluded as an "alternate holding" that the
been upheld. For instance, in Freeman v. Time Inc., product complied with FDA guidelines. The district
68 F.3d at 285, we upheld the dismissal of a court did note that it believed that "the FDA
challenge to a mailer that suggested the plaintiff had authorizes the way in which Gerber labels snacks."
won a million dollar sweepstakes. There, we relied Williams, 439 F.Supp.2d at 1112. Contrary to
on the fact that the mailer explicitly stated multiple Gerber's assertion, however, this was not an alternate
times that the plaintiff would only win the prize if he holding but simply support for the conclusion that the
had the winning sweepstakes number. Thus, it was product was not deceptive. Further, Gerber makes no
not necessary to evaluate additional evidence argument as to how compliance with certain FDA
regarding whether the advertising was deceptive, regulations would automatically shield it from
since the advertisement itself made it impossible for liability under these California statutes or tort
the plaintiff to prove that a reasonable consumer was claims.4
likely to be deceived.

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 Williams v. Gerber Products Co., 552 F.3d 934 (9th Cir., 2008)

In conclusion, we find that, given the Cider Vinegar, 265 U.S. 438, 443, 44 S.Ct. 529, 68
opportunity, Appellants have stated a claim and could L.Ed. 1094 (1924).
plausibly prove that a reasonable consumer would be 4. Compliance with FDA regulations may be relevant
deceived by the Snacks packaging. As such, the to a preemption argument. As we discussed above,
district court erred in concluding, without considering however, we decline to address that issue in this
any evidence beyond the packaging itself, that appeal.
Appellants' complaint failed to state a viable claim.5 5. We reject Gerber's argument that Appellants
IV. CONCLUSION waived their tort claims on appeal. The district court's
The district court erred in determining as a decision on the misrepresentation and breach of
matter of law that the Snacks packaging was not warranty claims rested on the conclusion that the
deceptive. The decision of the district court is packaging was truthful. Appellants challenged this
therefore REVERSED. conclusion. Although Appellants did not develop a
Judge ARCHER concurs in the result. distinct argument in their brief regarding their tort
[552 F.3d 941] claims, detailed discussion of these claims is
NOTE: OPINION CONTAINING TABLE OR unnecessary where the district court's decision on the
OTHER DATA THAT IS NOT VIEWABLE tort claims rested on the same grounds as the decision
--------------- on the statutory claims. We therefore find that
Notes: Appellants' failure to raise the issues in the opening
* The Honorable Glenn L. Archer, Jr., Senior United brief did not prejudice Gerber. See United States. v.
States Circuit Judge for the Federal Circuit, sitting by Ullah, 976 F.2d 509, 514 (9th Cir.1992).
designation. ---------------
1. A copy of the packaging is included as an
appendix to this opinion.
2. Appellants' amended complaint also alleged that
after the original complaint was filed, Gerber
changed the packaging to remove some of the
allegedly deceptive representations. Gerber
apparently changed the side panel to remove the
word "nutritious" from the original statement that
Snacks was "one of a variety of nutritious Gerber
Graduates foods and juices" and shortened "made
with real fruit juice and other all natural ingredients"
to simply "made with real fruit juice." Gerber also
changed the name of the product from "Fruit Juice
Snacks" to "Fruit Juice Treats." Gerber denied that it
made these changes as a result of the complaint.
Regardless, these changes and the reasons for the
changes are not relevant because this appeal concerns
only the original packaging.
3. Perber's claim that Snacks is "nutritious," were it
standing on its own, could arguably constitute
puffery, since nutritiousness can be difficult to
measure concretely. See Cook, Perkiss and Liehe,
Inc. v. Northern Cal. Collection Serv., Inc., 911 F.2d
242, 246 (9th Cir. 1990) (finding that statements are
non-actionable puffery where they constituted
"general assertions of superiority" rather than "factual
misrepresentations"). This statement certainly
contributes, however, to the deceptive context of the
packaging as a whole. Given the context of this
statement, we decline to give Gerber the benefit of
the doubt by dismissing the statement as puffery. "It
is not difficult to choose statements, designs, and
devices which will not deceive." United States v.
Ninety-Five Barrels More or Less of Alleged Apple

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