The California Court of Appeal recently reversed trial court judgments sustaining demurrers in two class action cases involving false advertising claims. In both cases the plaintiff alleged that he was misled to believe that “White Baking Morsels” or “White Baking Chips” contain white chocolate.

The defendants demurred on the ground that no reasonable consumer would believe that “White Baking” chips or morsels contain real white chocolate. The trial court agreed and entered judgment for the defendants. In both cases, the California Court of Appeal disagreed, holding that the plaintiff stated viable claims, and reversed.

In Salazar v. Target Corp., WL 4298521 (Cal. Ct. App. 2022), the Court of Appeal reasoned that a reasonable consumer could be misled by the product’s label, price tag, and shelf placement to believe the product contained real white chocolate. “Given the morsels’ price tag describing them as ‘WHT CHOCO’ juxtaposed alongside a depiction of the morsels, which look like white chocolate chips, it does not ‘strain credulity’ to claim that consumers may think that the morsels contain white chocolate.”

The Court of Appeal highlighted the difficulty in convincing a court to sustain a demurrer in false advertising cases by quoting the Ninth Circuit. “California courts have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer.” Williams v. Gerber Products Co. 523 F.3d 934, 939 (9th Cir. 2008).

In Salazar v. Walmart, Inc., WL 4299338 (Cal. Ct. App. 2022), the Court of Appeal reasoned that, “whether ‘white’ as an adjective describes a food’s color or ‘defines the quality of the product’ depends on the context.” The court reasoned that “white” could reasonably be interpreted as shorthand for “white chocolate.” Further, the “White Baking Chips” product was placed on a shelf next to real chocolate chip products and the label depicted them on cookies to show they could be used for baking, like chocolate chips. Given this context, the Court of Appeal held, the plaintiff plausibly alleged that “a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled” by the “White Baking Chips” advertising.

Notably, a federal court recently held the opposite, reasoning that “the adjective ‘white’ in ‘White Chips’ does not define the food itself but rather defines the color of the food. […] Simply because some consumers unreasonably assumed that ‘white’ in the term ‘white chips’ meant white chocolate chips does not make it so.” Cheslow v. Ghirardelli Chocolate Co., WL 1701840 (N.D. Cal. 2020). Several other federal courts have likewise dismissed false advertising claims involving “White Baking Chips,” holding that the plaintiffs’ purported interpretation of the product label was unreasonable as a matter of law. See, e.g., Prescott v. Nestle USA, Inc., WL 3035798 (N.D. Cal. 2020); Winston v. Hershey Company, WL 8025385 (E.D.N.Y. 2020); Rivas v. Hershey Company, WL 4287272 (E.D.N.Y. 2020).