A tool complainants sometimes use to address this issue is a consumer perception survey, in which an expert will design a survey to probe consumers on their understanding of what a product’s packaging means. Plaintiffs have increasingly begun to cite such investigations in complaints as a way to bolster their theories about how reasonable consumers interpret challenged labeling claims.
Yet despite the growing prevalence of consumer surveys, courts in food labeling class actions have made it clear that not only any investigation will suffice. Two recent rulings in two food labeling hotspots – the Northern District of California and the Southern District of New York – demonstrate that plaintiffs who base the plausibility of their claims on a consumer perception survey must be prepared for let the court consider the investigation’s methodology and overall persuasiveness, and possibly dismiss it outright.
Kennard: Consumer surveys should probe understanding of the specific challenged label claim
In Kennard vs. Kellogg Sales Co. (Northern California District)1, the plaintiff alleged that a variety of products sold under Kellogg’s MorningStar Farms brand were mislabeled with the term “vegetarian” because the products were not primarily comprised of vegetables. In her amended complaint, the complainant referred to consumer surveys commissioned for this matter to support her understanding of the term “vegetarian.” Investigations, according to the plaintiff, demonstrated that California consumers looking for “meat alternative” products would understand that the “vegetarian” labeling indicates that the products were “predominantly composed of vegetables rather than other non-vegetable ingredients. plants “.
In the surveys, Californians who indicated that they “had bought (or seriously considered buying) a meat alternative product in the last 12 months” were asked about either a “Veggie Burger” or a “Veggitizer”. The initial screen identified two categories of meat substitute ingredients: (1) “vegetable-based”, which “would include actual vegetable-based ingredients such as carrots, cauliflower, or potatoes “, and (2) “other plant-based ingredients,” which “could include ingredients made from other non-plant products such as grains or oils.” After being asked to review examples of such packaging, respondents were asked which would best describe the types of ingredients they would expect the product to contain. Available responses included: “All plant-based ingredients”, “Mostly plant-based ingredients”, “Mostly other plant-based ingredients”, “All other plant-based ingredients”, and “I don’t have no opinion”. According to the complainant, “out of more than 100 respondents to each questionnaire, more than 80% were misled into believing that the products are mainly or entirely vegetable-based”.
Kellogg decided to dismiss the amended complaint, arguing that “vegetarian”, as used in the labeling of its products, would be reasonably understood by consumers to refer to vegetarian foods and meat alternatives generally, for opposed to foods containing a particular amount of vegetables. The court agreed, explaining that even if the use of the term ‘vegetarian’ was ambiguous as to whether it referred to meat substitutes or a predominantly vegetable product, a ‘reasonable consumer’ could simply look at the packaging of the products, which does not did not indicate that a particular vegetable or class of vegetables was present. Instead, as the court explained, “the majority of the photographs on the packaging show that the products clearly mimic meat as vegetarian meat substitutes” and “[c]Consumers can also easily identify the actual ingredients of vegetarian products from the Federal Law Compliant Ingredient List. »
As for the plaintiff’s investigation, the court found that it did not support the plaintiff’s theory of the meaning of “vegetarian” because it:
asked the wrong question – which plant-based ingredients consumers believed were primarily in a product. The correct question is whether the use of the term VEGGIE in light of the challenged product types and the packaging of those products indicated that vegetarian products were an alternative to meat or whether these sources indicated that the challenged products were made with vegetables rather than other ingredients.
In other words, even taking the survey responses at face value, the survey design was simply too flawed to allow the plaintiff to overcome Kellogg’s motion to dismiss.
KINDLY MDL: Closed and leading questions in consumer surveys do not shed light on consumer understanding of a claim
A few weeks before the Kellogg ruling, the court in a long-running class action lawsuit over the labeling of KIND’s snack bars as “all-natural,” In re KIND LLC “Healthy & All Natural” Litig. (Southern District of New York),2 dismissed further investigation. That case, pending since 2015, had repeatedly included a wide range of allegations that several different representations on the packaging of KIND’s snack bars had misled consumers. Eventually, however, only one type of representation remained in the case: the claim that KIND bars were “all natural.”
KIND sought summary judgment, arguing that plaintiffs had failed to develop any evidence that a reasonable consumer would be misled by the company’s “All Natural” representations. As part of this effort, KIND also decided to disqualify the opinions of the Complainants’ two experts – one of whom had conducted a survey of consumers’ supposed understanding of the “All Natural” representation. (The other opined that KIND snack bars did not fit this definition.) The consumer survey involved a mock-up of a product resembling the KIND bar; participants were asked if they agreed, disagreed, or were unsure/unsure if they agreed with a statement about product packaging. For example, regarding the “all-natural” representation of the product, the survey asked respondents whether, based on this representation, they would expect the product (a) “[w]sick NOT contain artificial and synthetic ingredients, “(b)”[w]will contain artificial and synthetic ingredients” or (c)”[n]not sure/[n]o expectation.” According to the Complainants’ expert, 86.4% of consumers chose the option that an “all-natural” product would not contain “artificial or synthetic ingredients”.
Ultimately, the court dismissed plaintiffs’ investigation as biased and misleading and, therefore, granted KIND’s motion to exclude expert testimony based on the investigation. As the court explained, rather than investigating the definition of a reasonable consumer of “all-natural” in an overt manner, the expert’s investigation was instead “clearly designed to validate the plaintiffs’ theory.” For instance:
In his first question regarding consumer expectations for an “All Natural” product, [the expert] asks for only one potential definition of “all natural” – the definition the plaintiffs chose for this case – and only allows survey participants to choose from finite choices to agree, disagree, or disagree have expectations regarding this definition. This limited investigation is insufficient to meaningfully determine how reasonable consumers understand the “All Natural” claim, or to test the complainants’ theory.
As the court explained, the expert did “not pit the plaintiffs’ theory against any other possible competing theory”, nor ask “open-ended questions to determine the consumer’s understanding of the [‘All Natural’] Instead, as the expert admitted during his deposition, he provided only two “alternative understandings” of the “All Natural” claims because he “believed that was what plaintiff [sic] responsibility theory was rising.” This rendered the survey, in effect, a “push poll” invalid, and its results inadmissible.
Moreover, the absence of this investigation ended up being fatal to the cause of plaintiffs KIND; Having provided no other evidence showing how consumers generally understood the term “All Natural”, the plaintiffs had no evidence that the “All Natural” claim was false or misleading. As a result, the court also granted KIND’s motion for summary judgment, quickly ending a long-running class action lawsuit.
Whereas Kellogg and KINDLY have emerged under two very different procedural postures, they are unified by a clear theme: courts will not simply rubber-stamp a self-interested consumer perception survey in food labeling class actions. On the contrary, for the investigation to have teeth, the expert must ask the right questions, whatever the answers.
1 No. 21-CV-07211-WHO, 2022 WL 4241659 (ND Cal. September 14, 2022).
2 No. 15-MC-2645 (NRB), 2022 WL 4125065 (SDNY 9 September 2022).