Beverage distributors Vilore Foods Co. and Arizona Canning Company were accused of false and misleading advertising by a proposed class of consumers in the U.S. District Court for the Central District of California. The defendants distribute and market Kern’s fruit beverages, labeled as “nectars,” a product originating from Mexican producer Grupo Jumex.
The plaintiffs alleged that product claims stating “100% Natural” and “made with whole fruit” violated federal and state false advertising laws because the beverages contained dl-malic acid, which they characterized as an unnatural ingredient. The lawsuit, filed in May 2020, reached its third amended complaint before the court dismissed the plaintiffs’ request for class certification, relying in part on deficiencies in the plaintiffs’ expert survey evidence.
Survey Missed the Question
In support of certification for proposed California and nationwide classes, the plaintiffs relied on a consumer survey conducted by a testifying expert. According to the court, the survey was intended to assess “the importance consumers placed on certain attributes when deciding whether to purchase juice-based beverages.”
The court did not rely on the survey evidence because it did not properly measure whether reasonable consumers were likely to be deceived by the front-label claims. Instead, the survey measured consumer perception of product attributes and price sensitivity. As such, the survey failed to address the underlying issue necessary for class certification: whether misleading labels were likely to deceive consumers on a class-wide basis.
Findings and Addressing Deception
The plaintiffs’ expert intended to measure consumers' valuation of juices with no artificial ingredients. The survey concluded that consumers were willing to pay approximately 29 percent more for a Kern’s beverage priced at ninety-nine cents if it did not indicate the presence of artificial flavors, and approximately 30 percent less for a product that did indicate artificial flavors.
The findings addressed consumer preferences and willingness to pay, but did not measure whether consumers believed, based on the front-label claims, that the products contained only natural ingredients or no artificial flavors. As the court explained, the survey results “do not speak to the likelihood of deception stemming from the Products’ front labels and cannot establish such likelihood of deception on a class-wide basis.” This failure to isolate and test the allegedly misleading claims constituted a fundamental flaw in the survey’s design.
Class Certification and Survey Design
Since the plaintiff’s survey failed to measure deception attributable to the challenged representations, the court concluded it could not support a finding of commonality for class certification. Had the survey been designed to test whether reasonable consumers interpreted the front labels as representing that the products contained only natural ingredients, the outcome may have been different.
In false advertising litigation, surveys intended to support class certification must be carefully designed to address the precise legal questions at issue. Surveys that measure general preferences, pricing sensitivity, or abstract attributes, without isolating the challenged claims, risk being excluded or afforded no evidentiary weight.
IMS’s Rigorous Survey Evidence
Survey evidence must include appropriate controls, isolate the representations at issue, and align directly with the elements required for class certification or liability. The Litigation Surveys and Consumer Sciences team at IMS Legal Strategies designs and executes consumer surveys that meet judicial expectations and withstand scrutiny at both the admissibility and merits stages. Our experts have decades of experience designing, rebutting, and testifying in support of survey evidence in false advertising and intellectual property matters.
For organizations seeking reliable survey research or expert rebuttal in complex litigation, IMS Legal Strategies provides the methodological discipline and litigation experience necessary to support an effective legal strategy.
