FALSE ADVERTISING LEGAL STANDARD

The following case excerpt discusses the legal standard for False Advertising Claims.

The central question here is whether Salov’s labels were likely to deceive a reasonable consumer. The UCL, CLRA, and FAL, prohibit “not only advertising which is false, but also advertising which [,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.” Kasky v. Nike, Inc., 27 Cal. 4th 939, 951, 45 P.3d 243 (2002), as modified (May 22, 2002). To state a claim based on false labeling, “it is necessary only to show that ‘members of the public are likely to be deceived.'” Id. Thus the answer to the reasonable consumer question based on common facts, that is, identical statements on the labels of the products at issue. In cases alleging a deceptive advertising scheme under the UCL, CLRA, and FAL, it is well-settled that where “numerous consumers are exposed to the same dubious practice by the same seller…proof of the prevalence of the practice as to one consumer would provide proof for all.” Vasquez v. Superior Court, 4 Cal. 3d 800, 808 (1971) (concluding that if material misrepresentations were made to members of the class, an inference of reliance would arise as to the whole class); see also In re Tobacco II Cases, 46 Cal. 4th 298, 327 (2009) (inference of reliance arises wherever there is a showing that a misrepresentation was material, and plaintiff need not demonstrate individualized reliance on specific misrepresentations to satisfy the reliance requirement); Williams v. Gerber Products, 552 F.3d 934, 938 (9th Cir. 2008) (same for CLRA).

Kumar further grounds her claims on the theory that the “Imported from Italy” statement violates the Tariff Act of 1930, 19 U.S.C. § 1304(a) and implementing regulations, 19 C.F.R. § 134, including § 134.11 and § 134.46, which set forth specific requirements for when a company may label its products as “Imported from” any given country. Kumar intends to prove that Salov’s packaging violates regulations promulgated by the Food and Drug Administration, which provide that food is misbranded if its label expresses or implies a geographical origin of the food or any ingredient of the food except when such representation is “[a] truthful representation of geographical origin.” See 21 C.F.R. § 101.18; see also Cal. Health & Saf. Code §§ 110100(a), 110380, 110505 (adopting FDA standards). Kumar contends that violation of such regulations would establish a UCL claim under the “unlawful” prong. See Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999) (“By proscribing ‘any unlawful’ business practice, section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable”), quoted with approval in Chabner v. United of Omaha Life Ins. Co., 225 F.3d 1042, 1048 (9th Cir. 2000); Plascencia v. Lending 1st Mortgage, 259 F.R.D. 437, 448 (N.D. Cal. 2009) (“Violation of almost any federal, state, or local law may serve as the basis for a UCL claim.”), order clarified, 2011 WL 5914278 (N.D. Cal. Nov. 28, 2011). Whether the label statement violates these laws, and therefore establishes a predicate for a UCL, FAL or CLRA claim, is a common question, both factually and legally.

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