Gerber Suit Puts Class Member Test Back at 9th Cir.

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By Julie A. Steinberg

Dec. 6 — Gerber's wide variety of baby food products and labels is about to be front and center at the Ninth Circuit.

A three-judge panel of the appeals court is set to hear Dec. 13 a California woman’s appeal in a would-be class suit challenging label representations that allegedly overstate the products’ nutritional benefits ( Bruton v. Gerber Prod. Co., 9th Cir., No. 15-15174, oral argument 12/13/16 ).

The appeal presents important questions in consumer litigation over inexpensive items. They include what evidence plaintiffs must provide to establish class membership for class certification purposes.

A different panel of Ninth Circuit judges heard argument in September in another food labeling case that also presented “ascertainability” issues, Briseno v. ConAgra Foods Inc., No. 15-55727.

But that case is distinguishable from this one in that, in Briseno, the judges are being asked whether a class was properly certified in a suit challenging a single, “natural” label statement on ConAgra Foods Inc.'s Wesson Oils.

As a result, the judges in that case might find class membership easier to establish than in Natalia Bruton's case against the Gerber Products Co., which involves 69 products and multiple labels.

Another significant question raised in Bruton's case is what’s required to prove deception under California law.

Different Class Member Tests

Federal appeals courts diverge on ascertainability, the class membership issue.

The U.S. Court of Appeals for the Third Circuit has imposed a tough burden on plaintiffs—asking for objective evidence such as a purchase receipt.

Last term, the U.S. Supreme Court declined to hear two dietary supplement cases that addressed ascertainability.

The Ninth Circuit hasn’t yet ruled on the class membership test, but district courts in the circuit haven’t accepted the Third Circuit’s tough test.

Rather, courts have looked to whether it’s administratively feasible for plaintiffs to show membership in an objectively defined class.

In the case slated for oral argument Dec. 13, Bruton purchased various Gerber “second stage” baby foods for her daughter.

She alleged illegal label statements saying the products are an “excellent source” or “good source” of various vitamins and minerals made Gerber’s foods seem more healthful than those of its competitors. Bruton also challenged statements about sugar content.

The contested representations violated California and federal food labeling and consumer laws, Bruton said.

Certification Not Administratively Feasible

But the lower court declined to certify Bruton's suit.

The lack of consumer purchase records, by itself, didn’t block class treatment, the U.S. District Court for the Northern District of California said.

But certification foundered on administrative feasibility.

The suit encompassed a high number of products, nearly all of which had undergone multiple label iterations. In some cases, products with and without the challenged label statements were available for sale at the same time.

Consumers wouldn’t be able to recall accurately whether they had bought a qualifying product with a challenged label statement, the judge said.

The trial court also granted summary judgment to Gerber, saying the plaintiff didn’t show the label statements were deceptive.

Bruton’s Appeal

Bruton's appeal challenges the district court’s denial of class certification as well as other rulings.

The rules governing class certification don’t expressly require that a class be ascertainable, she said.

And if such a requirement did exist, Bruton said she met it by proposing a class defined in terms of objective criteria.

The court also erroneously found no fact question on whether Gerber’s representations were deceptive under California law, Bruton said.

The basis for that decision was the court’s “misguided belief” that Bruton failed to show it was deceptive for Gerber to include nutrient content claims on its labels, even though federal regulations bar such claims on products meant for children younger than 2, she said.

Bruton said she testified she had relied on, and was misled by, Gerber’s label statements.

The record also shows that the Food and Drug Administration had previously sent Gerber a warning letter reproaching some of the same label statements at issue here, Bruton said.

Gerber’s Response

But Gerber said the court correctly denied class certification: It identified insurmountable problems in trying to determine class membership based on the large number of products and multiple label changes.

The court correctly concluded that the self-identification proposal simply asked too much of potential class members’ memories, Gerber said.

Bruton also failed to produce any evidence that a reasonable consumer would be deceived by the statements, a requirement under the California consumer laws, the company said.

The plaintiff’s testimony that she bought Gerber products because she thought they were better than competitors’ products at best constituted evidence of her reliance, not evidence that reasonable consumers would be deceived, Gerber argued.

And the FDA warning letters—which were open letters to industry that said some of the challenged representations were inappropriate on foods meant for children under 2—didn’t address how consumers would perceive the label statements at issue, the company said.

Judges Diarmuid F. O’Scannlain, Ronald M. Gould and Milan D. Smith Jr. are scheduled to hear the case.

Pratt & Associates and Shelton Davis PLLC represent Bruton.

White & Case LLP represents Gerber.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

For More Information

Bruton’s brief is at http://src.bna.com/ksc.

Gerber’s brief is at http://src.bna.com/kse.

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