Jessica Karmasek Nov. 9, 2015, 9:09am


SAN FRANCISCO (Legal Newsline) - A California federal judge last week dismissed a consumer class action against Plum Organics, the maker of popular food pouches for babies and toddlers.

Judge William Alsup for the U.S. District Court for the Northern District of California nixed the action for failure to state a claim.

“After carefully reviewing the labels at issue, this order finds that a reasonable consumer would not be deceived by them,” Alsup wrote in his Nov. 2 order.

The putative class alleged that Plum’s Mighty 4 puree pouches and fruit bars were deceptive because their labels showed pictures of pumpkin and pomegranate but those ingredients were not the pouches’ most prominent.

Lead plaintiff Kathryn Workman and the rest of the class argued the allegedly deceptive advertising was a violation of the California Consumer Legal Remedies Action and the California Business and Professions Code.

Plum moved to dismiss for failure to state a claim, lack of standing and failure to plead.

Alsup applied a “reasonable consumer test” to determine whether the plaintiffs’ allegations amounted to a plausible claim.

In the end, he said there was no misrepresentation.

“Plaintiff concedes that the labels contain no affirmative misrepresentations and that all of the items pictured are actually present in the product. In contrast to plaintiff’s assertions, a reasonable consumer would simply not view pictures on the packaging of a puree pouch or box of fruit bars and assume that the size of the items pictured directly correlated with their predominance in the blend,” the judge wrote in his seven-page order.

“One can hardly walk down the aisles of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient. Every reasonable shopper knows that the devil is in the details.”

Alsup said 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 U.S. Food and Drug Administration.

“As our court of appeals stated in this context, ‘reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging,’” the judge wrote.

Alsup, in his order, granted a complete dismissal without leave to amend.

Workman had submitted a proposed amended complaint -- the only “substantive change,” the judge noted, being that she seeks money damages for the CLRA claim.

She argued that an amended complaint should be allowed because Plum recently issued a statement indicating it would be changing its product labeling.

Last month, the company said it will modify the names of its pouches and snack bars in response to parent feedback and a letter from the non-profit health advocacy group Center for Science in the Public Interest.

CSPI contacted Plum in May -- about a month before Workman’s action was filed -- with concerns that its labels were misleading.

According to a news release, at the time Plum was “actively working” to identify opportunities to “refresh” its labels. Since May, it has worked with CSPI to “accelerate” its production timeline.

“Since Plum’s inception, we’ve focused on delivering the very best food from the very first bite and our work with CSPI helps us further that mission,” said Ben Mand, senior vice president, brand marketing and innovation at Plum.

“We’re constantly optimizing our portfolio based on consumer feedback and these changes are a direct reflection of that commitment.”

As part of the agreement with CSPI, Plum will name its pouches in order of predominance of major ingredients. Imagery on product labels also will reflect predominance.

The changes will be made on a rolling basis, to be completed by October 2016.

Alsup said in his order last week that the defendant’s news release is “irrelevant” to the legal issue presented.

“As this order finds that the labels at issue are not deceptive, and the labels themselves cannot be changed by a new complaint, any amendment would be futile,” he concluded.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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