A California consumer filed a proposed class action lawsuit in the U.S. District Court for the Northern District of California against Unilever United States Inc. The case alleged that “natural vanilla” representations on Breyers Natural Vanilla Ice Cream packaging falsely conveyed that the product was flavored exclusively with natural vanilla.
Unilever’s vanilla-related marketing claims have been the subject of prior challenges; however, in this case, the court concluded that a flaw in the plaintiff’s litigation survey design prevented class certification. Would a more rigorous methodology have supported a different outcome?
Case Facts
Unilever markets Breyers Natural Vanilla Ice Cream. The ice cream packaging features vanilla orchids, vanilla beans, and black specks, commonly associated with natural vanilla. A consumer purchased the product but learned later that the vanilla flavoring was not exclusively sourced from vanilla beans.
A proposed class of California consumers alleged that Unilever’s packaging constituted false advertising under California’s False and Misleading Advertising Law and Unfair Competition Law. The claim alleged that the “natural vanilla” representations influenced consumers' buying decisions and that they paid a higher price for the product. The proposed class sought damages and injunctive relief to halt the challenged marketing practices.
Litigation Surveys in Class Certification
To support the motion for class certification, the plaintiff retained a consumer survey expert and relied on their testimony and report. Unilever moved to exclude that testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702.
A plaintiff must show that reasonable consumers were likely to be deceived by the packaging, and courts often rely on consumer surveys to measure consumer perception in false advertising disputes. The court admitted the expert testimonybut did not give the survey significant weight as evidence because it lacked a control group.
The Impact of a Methodological Flaw
The plaintiff’s survey expert questioned 900 purchasers of Breyers Natural Vanilla Ice Cream. Respondents were shown images of the front and sides of the packaging and asked about their expectations regarding the source of the vanilla flavor.
Respondents were asked:
What is your expectation about whether all or none of the vanilla flavor comes from vanilla extract?
Possible responses included:
- All of the vanilla flavor
- Not all of the vanilla flavor
- Not sure
According to the survey results, 79.9 percent of respondents expected all of the vanilla flavor to be natural, 14.5 percent expected some of it to be natural, and 5.7 percent were unsure. To assess materiality, respondents were asked which ice cream they would purchase if one option were naturally flavored and the other were not. Of those surveyed, 88.6 percent preferred the ice cream flavored entirely with natural vanilla, 6.7 percent preferred the non-natural option, and 4.7 percent expressed no preference.
Based on these measures, the survey expert concluded that the packaging imagery and the words “natural vanilla” caused consumers to believe the flavor was derived exclusively from natural vanilla and that the alleged misrepresentation was material to purchasing decisions. The expert also proposed a conjoint analysis for quantifying damages and to find the price premium consumers paid for a natural product.
Winning Rebuttal in the Absence of a Control
Unilever retained a survey expert to rebut the plaintiff’s expert. The Unilever survey expert testified that the plaintiff’s expert’s failure to include a control group was a critical methodological flaw, and that, without a control, the survey could not account for respondents’ preexisting beliefs about vanilla flavoring or the Breyers brand. As a result, the Unilever expert said, the survey did not reliably measure whether the representations were likely to deceive a reasonable consumer.
Ruling and The Importance of Methodology
Methodologically sound surveys must include controls. Without a control, the survey failed to isolate Unilever’s vanilla representations from other aspects of the packaging, and the court concluded that the lack of a control rendered the survey results unreliable for class certification purposes. The court held that the plaintiff could not demonstrate the commonality required for class certification with respect to deception, materiality, and damages. The motion for class certification was denied without prejudice. Ultimately, Unilever settled the suit.
IMS Survey Design as a Litigation Determinant
As noted by many authorities on litigation surveys, courts expect properly designed controls in litigation surveys. Designing surveys to measure the perceptions of reasonable consumers is not a mechanical exercise; it can determine the outcome in false and deceptive advertising class actions. The Litigation Surveys and Consumer Sciences team at IMS Legal Strategies designs and executes scientifically rigorous consumer surveys to support class certification, liability, and damages analyses.
In false and deceptive advertising matters requiring survey evidence, IMS Legal Strategies delivers reliable, defensible results.
