Nathan A Adams IV is a Partner in Holland & Knight's Tallahassee office

In Johnson v. Atkins Nutritionals, Inc., No. 2:16-cv-04213, 2018 WL 3398162 (W.D. Mo. July 12, 2018), the plaintiff sued the defendant on various theories for alleged deceptive labels, but during deposition he testified that he remembered seeing, but not reading the "Counting Carbs?" label. When asked whether the label was important to his purchasing decision, the plaintiff testified that his then-wife "would direct him to purchase certain things that they wanted" as part of a no-carb to low-carb diet plan to cut sugar and lose weight. The defendant argued that an element of a claim under the Missouri Merchandising Practices Act (MMPA) must be reliance on the alleged false label. The defendant argued the label must at least be material to the consumer's purchasing decision. The court disagreed that reliance or materiality were necessary elements of the MMPA claim any more than that the plaintiff had suffered some "ascertainable loss." The plaintiff consumed the products and was not adversely affected, but the court determined that the plaintiff need only show that the product was worth less than what he paid for it due to the alleged false label. The court did grant summary judgment on the plaintiff's claims for breach of express warranty and unjust enrichment as they pertain to the "Counting Carbs?" label on chocolate peanut butter bars. The defendant failed to solicit similar reliance deposition testimony for three other products, so the related claims remained. The court also denied summary judgment on the plaintiff's claims with respect to the "Only Xg Net Carbs" label, although the plaintiff said he did not think "only" "really does anything."

Ambiguity Regarding Definition of Word on a Label Prevents Dismissal

In Cohen v. East West Tea Co., LLC, No. 17-CV-2339, 2018 WL 3656112 (S.D. Cal. Aug. 2, 2018), the plaintiff alleged that the defendant advertises and sells tea products containing "Organic Kombucha" when, in reality, they do not. The plaintiff argued there is a common understanding that kombucha contains live organisms. The defendant disagreed and argued that any reasonable person would know that there cannot be live organisms in the tea bag when the tea is boiled. Nevertheless, the court denied the defendant's motion to dismiss because it could not conclude as a matter of law that members of the public are not likely to be deceived by the product's packaging. "Without an approved nor agreed upon definition of kombucha" like "all natural," a reasonable consumer could assume kombucha includes live bacteria. The plaintiff alleged that she would not have bought the tea but for the alleged misrepresentation; therefore, the court determined that she alleged sufficient reliance on the label. The court also found that the plaintiff pled all of the elements of breach of express warranty and determined that she has standing for injunctive relief.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.