Judge dismisses class action lawsuit, ruling that even prominent pictorial label representations may not necessarily mislead.  (subscription to Law360 required)

• Much debate exists about the extent to which graphic or pictorial representations on food labels may or may not deceive consumers as to product composition.  In a case filed recently in the “Food Court” (Northern District of California), a plaintiff challenged a food manufacturer for using prominent photos of food ingredients on the front of labels for puree pouches where those ingredients were not the only ingredients present and where other ingredients were present in greater proportions.
• On November 2, 2015, a federal judge dismissed the lawsuit for failure to state a claim for relief.  In contrast with other decisions in this arena, the judge stated that “a reasonable consumer would simply not view pictures on [food packaging] and assume that the size of the items pictured directly correlated with their predominance in the blend” and that “[e]very reasonable shopper knows that the devil is in the details.”  The judge further found that “any potential ambiguity could be resolved by the back panel of the products, which listed all ingredients in order of predominance, as required by the FDA.”  The ruling distinguished the instant case from other situations in which label claims or graphics made affirmative misrepresentations, e.g., displaying ingredients not actually contained in the products or stating that products were made with “other all natural ingredients” when many ingredients were synthetic.
• Although the dismissal of this case is a positive development for the food industry, it will not necessarily end the debate over whether “FDA-compliant” label claims and graphics will insulate food companies from challenge.  In contrast, in a highly-publicized case involving a Lanham Act challenge over a “Pomegranate Blueberry” juice beverage that contained very limited quantities of pomegranate juice and blueberry juice, the Supreme Court unanimously held that the lawsuit could continue even where the labeling may conform with FDA regulations.  In that case, much debate centered around the use of label claims and graphics that arguably were deceptive despite technical compliance with FDA requirements.  We suspect that this debate is far from over.  It remains to be seen whether the plaintiff in this case will appeal the dismissal order, or whether the current decision will stand and potentially raise the bar (at least in the Food Court) for pleadings regarding whether particular food claims and graphics are deceptive in the overall context of a product label.