Antitrust Law Daily Wrap Up, FALSE ADVERTISING—NDCal: Salad Dressing’s Immune-Boosting Claims May Constitute False Labeling , (Dec 17, 2012)

By Jody Coultas, J.D.

A salad dressing purchaser stated California consumer protection law claims against a company that advertised its salad dressing as an immune booster, according to the federal district court in San Francisco (Koehler v. Litehouse, Inc., December 13, 2012, Illston, S.).

Litehouse, Inc. manufactured and sold “Bleu Cheese Yogurt Dressing with Probiotics” and included claims on the salad dressing labels that the product “may boot immunity” and “may enhance the body’s immune system.”

To state false advertising claims under the California consumer protection laws, the plaintiff must show that a reasonable consumer was likely to be deceived by the advertisement.

While the claims suggesting that consumers believed the product would or must boots their immunity were dismissed, the court denied the motion to dismiss all the claims. A reasonable consumer would understand the health claims to represent only a possibility or probability that the salad dressing would boost their immunity or enhance their immune system. Therefore, those claims predicated on the idea that consumers understood that the salad dressing would or must boost their immunity were dismissed. However, the salad dressing did not boost any consumers’ immunity in any way. Those claims that were based on a reasonable consumer believing there was a possibility the salad dressing would enhance the immune system were not dismissed.

The issue of whether the purchaser could state claims based on advertisements for the salad dressing that he did not see was an issue better addressed at the class certification stage, according to the court.

Dismissing the purchaser’s claims for injunctive relief would effectively bar any consumer who avoids the offending product from seeking such relief, according to the court. Defendants would always be able to avoid injunctive relief if the courts hold that consumers who were injured are deemed to avoid the cause of the injury thereafter.

The purchaser could not state California consumer protection law class action claims on behalf of a nationwide class, according to the court. Non-California resident class members lacked sufficient contact with California.

The case is No. CV 12-04055 SI.

Benjamin Michael Lopatin (The Law Offices of Howard W. Rubinstein, P.A.) for Garrett Koehler. Hayes F. Michel (Baker & Hostetler) for Litehouse, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews