LOS ANGELES (Legal Newsline) - A lawsuit filed by a woman who says she was misled into buying Jelly Belly's exercise jelly bean is not uncommon, one attorney says, but it is "nonsense," the company is arguing.
Jelly Belly’s Sport Beans are advertised as an exercise supplement containing electrolytes and vitamins. Jessica Gomez, in a lawsuit filed earlier this year in a California state court, says they also contain more sugar than she thought.
That’s because “evaporated cane juice” is listed on the ingredients list. This term is used instead of “sugar” to make Sport Beans more attractive to athletes, Gomez and her attorneys say.
Jelly Belly’s response: Read the nutrition information.
“This is nonsense,” the company says in an April motion to dismiss.
“No reasonable consumer could have been deceived by Sport Beans’ labeling – Gomez could not have seen ‘evaporated cane juice’ without also seeing the product’s sugar content on its Nutrition Facts panel.
“And she has pled no facts to suggest that athletes, who consume this product to sustain intense exercise, would want to avoid sugar rather than affirmatively seek it.”
Gomez’s filed a class action suit earlier this year against Jelly Belly, alleging negligent misrepresentation and violations of California’s Consumer Legal Remedies Act, False Advertising Law and Unfair Business Practices Law. She is seeking a trial by jury, damages, restitution, attorneys’ fees and injunctive relief.
Unsurprisingly, the case was filed in a California court. The defendant has removed the case to the federal court in Los Angeles.
“False advertising cases are fairly common in California, which is known for its strong consumer protection laws,” Jordan Elias, an attorney with Girard Gibbs LLP in San Francisco, explained to Legal Newsline.
“The law of false advertising is intended both to protect a fair marketplace for consumers and to ensure that producers compete on a level playing field.”
A major factor in the lawsuit is the alleged misrepresentation of an ingredient.
“In order to make the product appear even more appropriate for athletes and less like a candy, defendant lists ‘evaporated cane juice’ as an ingredient in its product,” states the complaint.
“‘Sugar’ is not found in the ingredient list of defendant’s product. Nowhere does defendant explain to consumers (1) that ‘evaporated cane juice’ is not juice and (2) that ‘evaporated cane juice’ by its common and usual name is sugar.
“By so doing, defendant is able to deceive consumers, including plaintiff, regarding basic nature of the product and its contents.”
Jelly Belly may try to defend against these allegations by showing the claims were not technically lies.
“A key distinction in these cases often relates to whether the representations are ‘mere puffery,’ meaning general assertions like ‘best breakfast in town,’ which are acceptable under the law, or objectively verifiable assertions like ‘guaranteed to reduce your blood pressure by 10 percent,’” Elias said.
Gomez’s complaint argues that the product’s label had been designed to mislead consumers, and that she and others would not have been willing to pay as much for them, if they had purchased the Sport Beans at all, if not for the company’s alleged misrepresentations.
“For a company to list ‘evaporated cane juice’ instead of just ‘sugar’ on its product label does seem misleading,” Elias said.
“Although the company will likely argue that people know what they’re getting when they buy jelly beans and not everyone who bought jelly beans did so because of what the label said.”
Gomez is represented by Thomas Kohler and Ryan Ferrell of Apex Trial Law in Newport Beach, Calif.
“Sweeteners derived from sugar cane should not be declared on food labels as evaporated cane juice,” the FDA wrote.
This guidance, though, lacks teeth. The FDA also wrote that it represented the current thinking of the FDA but “does not establish any rights for any person and is not binding of FDA or the public.”
In picking apart Gomez’s complaint, Jelly Belly wrote that she:
-Did not claim she expected a sugar-free product;
-Does not contend that sugar is not a carbohydrate;
-Makes no allegations as to what an athlete would want or expect in a sports energy product;
-Does not allege that an athlete would not know that sugar comes from cane; and
-Does not explain why sugar would be undesirable in a product used to support intense exercise.
“Plaintiff also does not explain why an athlete – or anyone – would be surprised to find sugar in a product described as ‘Jelly Beans,’” the motion says.