9th Circ. OKs Toss Of Twinings Tea Antioxidant Case – Law360 (subscription to Law360 required)

• Seeking injunctive relief in consumer class action cases requires the plaintiff to show there is a threat of future harm.  A recent decision emphasizes the difficulty that a plaintiff can face when she concedes she will not purchase the contested product again.
• Earlier this month, the U.S. Ninth Circuit Court of Appeals upheld the dismissal of injunctive relief in Nancy Lanovaz v. Twinings North Americs, Inc., finding the plaintiff who brought the suit did not allege that she would again purchase the tea marketed with allegedly misleading nutrient content claims.
• To be actionable, a misstatement must be material.  Materiality will be an issue for a plaintiff who can show the potential for future harm only by acknowledging that she will continue to purchase a product despite a misleading statement.  However, it would appear to be difficult for a plaintiff to establish that a misstatement was material to her decision to purchase the product when she agrees that she would continue to buy the item even after learning that the statement is incorrect.  It remains to be seen whether this decision will influence class action complaints going forward.