The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.

Second, as purported class wide evidence of materiality, Plaintiffs relied on a survey in which consumers were asked to rate the importance of certain attributes to their purchasing decisions.  On a scale of 1 to 5 (from “not at all” to “extremely” important), participants in California rated “no artificial flavors” as 3.7 and “all natural ingredients” as 4.0.  And in response to a question about how artificial flavoring would affect the price a participant would pay for a can of Kern fruit juice, approximately 15% said they would not purchase Kern’s fruit juice.

The court found both types of evidence insufficient.  With respect to consumer ratings, the court held that “general perception of juice-based beverages’ attributes” did not constitute common evidence of materiality, because the survey did not test whether the products’ failure to disclose artificial flavoring was material to participants’ purchasing decisions.  Likewise, the fact that some consumers indicated they would not purchase Kern fruit juice with artificial flavoring was not evidence of materiality, because the survey did not isolate artificial ingredients as the reason these consumers purportedly would not purchase Kern beverages.  There was no way to determine if other factors, such as price, promotions, retail positioning, taste, or brand recognition motivated their response.  As a result, the court held that the survey did not constitute common proof of materiality.