Antitrust Law Daily Wrap Up, ADVERTISING—E.D.N.Y.: “Suave NATURALS” representation could mislead consumers, (Aug 19, 2015)

By Greg Hammond, J.D.

Consumers have adequately alleged that the representation “NATURALS” on a soap manufacturer’s products was misleading because they contained unnatural and synthetic ingredients, in violation of New York and California consumer protection laws. In denying the manufacturer’s motion to dismiss, the federal district court in Brooklyn determined that, although the label makes no explicit claim of being “All Natural” or “100% natural,” a reasonable juror could reach the conclusion that the label “Naturals” means the product is at least mostly comprised of natural ingredients (Paulino v. Conopco, Inc., August 17, 2015, Gleeson, J.).

Conopco, Inc., doing business as Unilever, Inc., sells a number of shampoos, conditioners, body washes, body lotions, and other personal care products under the “Suave NATURALS” brand name. Consumers Lucianne Paulino and Latu Fanaika filed a putative class action against Conopco, alleging that the company’s use of the term “NATURALS” on its packaging constituted deceptive business practices and was misleading under New York law, as well as California’s Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumers Legal Remedies Act (CLRA). Conopco moved to dismiss the state law claims.

Deceptive acts, practices. In support of its motion to dismiss, Conopco argued that several features of its products would prevent a reasonable consumer from concluding that they were natural. The court rejected these arguments, first noting that it could not rule, at this stage of the litigation, that the low price of the product rendered the allegation that consumers were paying an unwarranted premium implausible. The FDA-mandated list of ingredients on the back of the packaging did not extinguish the possibility of deceptive advertising, since reasonable consumers should not be expected to look beyond misleading representations on the front of a package to discover the truth from the ingredient list in small print on the side.

The court concluded that, at the current stage of litigation, the difference between “Naturals” and the descriptive “Natural” was too elusive to require dismissal. Further, the fact that the label makes no explicit claim of being “All Natural,” “100% Natural,” or “free from synthetics” was beside the point, because a reasonable juror could conclude that the label “Naturals” means that the product is at least mostly comprised of natural ingredients. The consumers therefore sufficiently alleged that Conopco’s “Naturals” representations misled them into believing that the products were natural when, in fact, they were filled with unnatural, synthetic ingredients.

California claims. Conopco argued that the California UCL, FAL, and CLRA claims should be dismissed because no reasonable consumer would be misled by the word “Naturals” in the context of the products’ packaging, and the plaintiffs failed to adequately plead reliance. Borrowing its analysis from the New York deceptive acts and practices claim, the court first determined that the plaintiffs adequately pleaded that the statement the products are “Naturals” could mislead reasonable consumers.

The court also found that the plaintiffs adequately alleged reliance. Specifically, the consumers indicated the time-period over which they purchased the products, where they purchased the products, and what particular products were purchased. In addition, they claimed that: (1) the packaging of the particular products purchased contained the misleading representations at issue, along with imagery of natural scenes and natural-sounding names; (2) they relied upon the representation that Suave Naturals were, in fact, “NATURALS”; and (3) had they known at the time of purchase that the products were not “NATURALS” or natural, but instead contained predominantly unnatural or synthetic ingredients, they would not have purchased the products. The court therefore concluded that the plaintiffs sufficiently stated a claim under the FAL and UCL, as well as pleaded a CLRA claim under the heightened pleading standard of Federal Rule of Civil Procedure 9(b).

The case number is 14-CV-5145 (JG)(RML).

Attorneys: D. Greg Blankinship (Finkelstein, Blankinship, Frei-Pearson & Garber, LLP) and Kim Richman (Reese Richman LLP) for Plaintiffs. Jay Lefkowitz (Kirkland & Ellis) for Conopco, Inc.

Companies: Conopco, Inc.

Cases: Advertising ConsumerProtection NewYorkNews