The U.S. Courts of Appeal for the Second and Ninth Circuits recently issued rulings reinforcing the reasonable consumer standard. In doing so, these cases refine prior precedent and strengthen a court’s ability to properly dismiss cases over labeling claims where no reasonable consumer could plausibly be misled. As the Ninth Circuit put it, “a reasonable consumer does not check her common sense at the door of the store.”

  • In Moore v. Trader Joe’s Co., the Ninth Circuit emphasized the importance of context in evaluating what a reasonable consumer would understand. 4 F.4th 874 (9th Cir. 2021). The case involved a product labeled as “100% New Zealand Manuka Honey.” The plaintiffs challenged the labeling, alleging that the pollen used to produce the honey did not come entirely from the manuka plant.
  • In McGinity v. The Procter & Gamble Company, 69 F.4th 1093 (9th Cir. 2023), the Ninth Circuit clarified that a reasonable consumer could address ambiguous information on a product’s packaging by looking at other parts of the labeling. McGinity involved a “Nature Fusion” shampoo product. The plaintiff challenged the representation, reading the product’s name as a promise that the shampoo was “natural.” 
  • In Hardy v. Ole Mexican Foods, Inc., No. 22-1805, 2023 WL 3577867 (2d Cir. May 22, 2023), the Second Circuit revisited its prior caselaw. There, the labeling of four tortilla products was challenged when it conveyed, among other things, the phrase “A Taste of Mexico,” graphics similar in appearance to the Mexican flag, and a set of Spanish words. The plaintiff alleged the labeling represented the product as made in Mexico, when it was actually produced in the United States.

Read the full update here: Appellate Courts Issue Reasonable Consumer Defense Wins in Food Litigation Cases | Perkins Coie

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Photo of David T. Biderman David T. Biderman

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in…

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in state and federal courts in California for 30 years.

On consumer class actions, David represents packaged food companies, coffee companies, dairy companies, footwear companies and others whose nutritional or health claims have been challenged. He also has represented search engines and other online companies. He has a record of favorable results for clients. He successfully tried a major consumer fraud class action on behalf of one of the world’s major search engines in a case involving online gambling advertisements. For that same client, he negotiated a favorable settlement of a class action challenging its online advertising pricing. He represented a major coffee retailer in defeating a class action on standing grounds. He also has litigated pre-emption defenses arising out of food labeling and obtained a dismissal for a client whose nutritional statements were challenged.

For fifteen years, David managed the firm’s full-service product liability team responsible for defending over 1,000 toxic tort cases pending in Los Angeles and Northern California state courts. These cases entailed ongoing trial activity at various levels for several trials set each month. The highly experienced and well-coordinated team has handled thousands of asbestos toxic tort cases for a variety of clients, including FORTUNE 500 companies from such industries as consumer products, aerospace manufacturing, household goods, dry cleaning and industries that generate electromagnetic fields, such as electric utilities and operators of wireless communications systems.

Photo of Charles Sipos Charles Sipos

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado…

Charles Sipos is a class action litigator with more than two decades of experience focusing on technology, consumer goods, and privacy issues.

He litigates class actions nationwide and has appeared and argued on behalf of defendants in federal courts, including in California, Colorado, the District of Columbia, Florida, Illinois, New Jersey, New York, Massachusetts, Minnesota, Oregon, Washington, and the U.S. Courts of Appeals for the Second, Seventh, Ninth, and Eleventh Circuits. Charles’ litigation successes have included dismissals and summary judgment based on lack of Article III injury, statutory standing under consumer protection laws, federal preemption, primary jurisdiction, failure to allege damages, First Amendment protection for commercial speech, the “reasonable consumer” standard, and related defenses.

Photo of Tommy Tobin Tommy Tobin

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false…

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.