Let it “Bee”: Ninth Circuit Says Rejection of Trader Joe’s Manuka Honey Advertising Combination | Proskauer – Advertising law

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A Ninth Circuit panel recently upheld the dismissal of an alleged class action lawsuit against consumers alleging that Trader Joe’s misleadingly labeled its store-brand honey as “100% New Zealand Manuka Honey,” where Complainants’ pollen content tests showed that only about 60% of the honey was derived from Manuka Flower Nectar. In doing so, the Court emphasized the importance of taking into account the context (including the basic knowledge of a reasonable consumer) in assessing whether the advertisement would be likely to mislead a reasonable consumer. Moore vs. Trader Joe’s Co., n ° 19-16618 (9th Cir. July 15, 2021).

According to the FDA honey guidelines, “Manuka honey” is the “common or usual name” for honey whose “primary flower source” is the Manuka bush, a plant native to Australia and New Zealand. Zealand. The complainants conceded that Trader Joe’s labeling conforms to these guidelines. Even still, the complainants argued that “100% New Zealand Manuka honey” could nonetheless mislead consumers into believing that the honey was “100%” Manuka flower nectar. As noted, the plaintiffs ordered pollen content tests which showed that almost half of the honey came from other flower nectars other than Manuka.

The Court of Appeal noted that the “100%” on the label “100% New Zealand Manuka Honey” could be read in several ways: derived from the Manuka flower, or that 100% of the honey came from New Zealand. In determining whether this ambiguity would mislead a reasonable consumer, the Ninth Circuit panel relied on the case law of several federal courts of appeal supporting “the general principle that [courts considering] misleading advertising claims should take into account all information available to consumers and the context in which that information is provided and used. The panel also noted that “the information available to a consumer is not limited to the physical label and may involve contextual inferences regarding the product itself and its packaging”.

Here, the Court concluded that three key contextual inferences would deter a reasonable consumer from adopting the “unreasonable or fanciful” belief that the product consists solely of honey derived from the Manuka flower: (1) the inability to manufacture a honey 100% derived from a floral source; (2) the low price of Trader Joe’s Manuka honey; and (3) the presence of “10+” on the label.

First, the Court explained that due to the well-known “foraging nature” of bees, any reasonable consumer would know that it is impossible to completely control the flowers that a bee visits, making it impossible to produce one. 100% honey derived from a single floral source.

Second, the Court examined the price of Trader Joe’s Manuka honey relative to the cost of products containing higher concentrations of Manuka-derived honey. Trader Joe’s honey costs $ 13.99 per jar ($ 1.59 per ounce), while a jar of 92% Manuka-derived honey costs around $ 266 ($ 21.55 per ounce). In view of this dramatic price difference, the Court concluded that a consumer familiar with the Manuka honey market could not reasonably expect a $ 13.99 jar of honey to be “100%” derived from Manuka flower nectar. In support of its reasoning, the Ninth Circuit cited the decision of the Second Circuit in Jessani vs. Monini – a lawsuit in which Proskauer successfully represented the manufacturers of olive oil “flavored with white truffle”. In that case, the Court concluded that it was “simply not plausible that a significant portion of the general public acting reasonably could conclude that [the defendant’s] The mass-produced, low-cost olive oil was made with “the most expensive food in the world”.

Third, the Court turned to the “10+” on the product label. Although the Court noted that there are “no further details on the jar regarding the meaning of ’10+”, the presence of this note on the label warns a reasonable consumer that it must represent Something on the product. In fact, the “10+” refers to honey’s Unique Manuka Factor (UMF) score, which measures the honey concentration of a Manuka honey product derived from Manuka flower nectar. The Court observed that reasonable consumers of Manuka honey would regularly encounter such ratings and likely have some knowledge of them – and any consumer with even a cursory knowledge of the UMF scale would know that Trader Joe’s Manuka honey was decidedly at odds. the lower end of the scale. , which ranges from 5+ to 26+.

The Court thus ruled that “a reasonable consumer would only have to conclude that” 100% New Zealand Manuka honey “means that it is 100% honey whose main floral source is Manuka plant, which is an accurate statement. “

While some Ninth Circuit district courts may be unduly reluctant to dismiss at the plea stage complaints alleging unreasonable interpretations of advertising, Moore is a reminder that “where complainants base claims of misleading advertising on unreasonable or fanciful interpretations of labels or other advertising, the rejection of pleadings may well be justified.” Moore is also a reminder that in advertising law, context is king – or perhaps queen, in the case of the bee.

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