Natalia Bruton, individually and on behalf of all others similarly situated v. Gerber Products Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIA BRUTON, individually and on
behalf of all others similarly situated,
Plaintiff-Appellant,
v.
GERBER PRODUCTS COMPANY,
Defendant-Appellee.
No. 15-15174
D.C. No. 5:12-cv-02412-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued December 13, 2016 Submitted April 19, 2017
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Natalia Bruton filed a putative class action against baby
food manufacturer Gerber Products Company (Gerber). Bruton alleged that labels
on certain Gerber baby food products included claims about nutrient and sugar
content that were impermissible under Food and Drug Administration (FDA)
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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regulations incorporated into California law. The district court dismissed several
of Bruton’s claims, denied class certification, denied partial summary judgment for
Bruton, and granted summary judgment to Gerber. Bruton appeals, challenging the
district court’s orders. We have jurisdiction under 28 U.S.C. §§ 1291 and 1332(d).
We reverse and remand.
1. The district court erred in dismissing Bruton’s claim for unjust
enrichment/quasi-contract. At the time when the district court dismissed this
claim, California’s case law on whether unjust enrichment could be sustained as a
standalone cause of action was uncertain and inconsistent. But since then, the
California Supreme Court has clarified California law, allowing an independent
claim for unjust enrichment to proceed in an insurance dispute. See Hartford Cas.
Ins. Co. v. J.R. Mktg., L.L.C., 61 Cal. 4th 988, 1000 (2015); see also Ghirardo v.
Antonioli, 14 Cal. 4th 39, 54 (1996) (recognizing independent cause of action for
unjust enrichment relating to real estate transaction). In light of this clarification,
we reverse the district court’s dismissal and remand for consideration of whether
there are other grounds on which Bruton has failed to state a claim for unjust
enrichment, or if that claim must proceed to resolution.
2. The district court erred when it held that the class could not be certified
because it was not “ascertainable.” Again, the district court’s reasoning runs
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headlong into an inconsistent case that was decided after the district court’s ruling.
In Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), our
court—using different terminology for what the district court called
“ascertainability”—held that there was no separate “administrative feasibility”
requirement for class certification. Id. at 1123. We reverse the district court’s
denial of class certification and remand for further consideration of whether class
certification is appropriate.
3. The district court erred in holding that there was no genuine dispute of
material fact on Bruton’s claims that the labels were deceptive in violation of
California’s Unfair Competition Law (UCL), see Cal. Bus. and Prof. Code
§ 17200, False Advertising Law (FAL), see id. § 17500, and Consumer Legal
Remedies Act (CLRA), see Cal. Civ. Code § 1770.
Bruton’s theory of deception does not rely on proving that any of Gerber’s
labels were false. Rather, Bruton contends that the combination of (a) the presence
of the claims on Gerber’s products (in violation of FDA regulations), and (b) the
lack of claims on competitors’ products (in compliance with FDA regulations),
made Gerber’s labeling likely to mislead the public into believing that Gerber’s
products were of a higher quality than its competitors’ products.
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Doubtless, Bruton’s theory of deception is unusual. But even technically
correct labels can be misleading. See Lavie v. Procter & Gamble Co., 105 Cal.
App. 4th 496, 510 (2003) (“The advertisement, although literally true, was
nevertheless deceptive and misleading in its implications.” (quoting People v.
Wahl, 39 Cal. App. 2d Supp. 771, 773 (Cal. App. Dep’t Super. Ct. 1940) (literally
true advertisement was misleading because price of offered product was 50% off
regular price of more expensive product, not regular price of the offered product));
see also Leoni v. State Bar, 39 Cal. 3d 609, 627 (1985) (holding that attorney
advertising, though not false, was misleading because “[a] necessary fact ha[d]
been omitted.”). Here, it may be literally true that Gerber’s products are “As
Healthy As Fresh,” but due to external facts—that Gerber does not comply with the
FDA regulations that otherwise prevent its competitors from making the same
claim—Gerber’s labels mislead in their implications.
Bruton’s theory of deception comports with common sense. Shoppers in a
supermarket aisle look for cues about quality in the products they buy. If a
shopper sees two products on a shelf and one says “Supports Healthy Growth &
Development,” while the other makes no similar claim and is cheaper, a likely
inference is that the first product will be viewed as healthier, explaining why it
costs more. If the products had been of the same quality, then competitive
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pressures would have driven the maker of the second product to use the same
attractive label. In the baby food market in particular—where measuring the effect
of a particular food on one’s own baby’s growth and development is not
practical—consumers have to make quality judgments before the baby is fed, based
on what they see in front of them at the store. When everyone plays by the rules,
this process works reasonably well. But when the maker of one product complies
with a ban on attractive label claims, and its competitor does not do so, the normal
assumptions no longer hold, and consumers will possibly be left deceived. We
hold that Bruton has alleged a viable claim for consumer deception.1
1 That Bruton reviewed the nutritional information of both Gerber’s and its
competitors’ products does not undermine the deceptive nature of Gerber’s labels.
Consumers cannot easily check claims like “Supports Healthy Growth &
Development,” or “As Healthy As Fresh,” against nutritional charts to determine
their veracity. Consumers might believe, for instance, that the claims refer to the
quality of the produce used or the particular canning process. The same holds for
the absence of such claims. Does the lack of the claim “Supports Healthy Growth
& Development” on a competitor’s product mean that the product does not support
healthy growth and development? A nutritional chart does not answer that
question. This problem applies even for seemingly black and white claims like
“No Added Sugar.” If Gerber’s product says “No Added Sugar,” and a
competitor’s product does not, the competitor’s nutritional chart will not under
current FDA requirements tell the consumer whether any of the sugar in its product
was added—it will simply list the amount of “Sugars.” See Food Labeling:
Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33742-01,
33742 (May 27, 2016) (codified at 21 C.F.R. pt. 101) (compliance date for new
“Added Sugar” rule delayed until 2018 or 2019). Nevertheless, the reasonable
assumption would be that some of the sugar in that competitor’s product must have
(continued...)
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The next questions is whether Bruton submitted enough evidence of likely
consumer deception to create a genuine dispute of material fact for trial. Bruton
submitted the following evidence to support consumer deception: (1) Gerber’s and
its competitors’ labels; (2) Bruton’s own testimony about being misled by Gerber’s
labels; and (3) two warnings letters from the FDA.
The key evidence is the labels. A reasonable jury observing Gerber’s labels
and comparing them to those of its competitors could rationally conclude that
Gerber’s labels were likely to deceive members of the public. See Colgan v.
Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663, 679 (2006) (“In determining
whether a statement is misleading under the [FAL], the primary evidence . . . is the
advertising itself.” (internal quotation marks omitted)); see also id. (“The
misleading character of a given representation appears on applying its words to the
facts.” (internal quotation marks omitted)).2 We hold that Bruton has submitted
sufficient evidence to create a genuine dispute of material fact over the reasonable
1(...continued)
been added, or else the competitor would have used the attractive label “No Added
Sugar.” The upshot is that nutritional charts on Gerber’s and its competitors’
products do not cure what makes Gerber’s packaging misleading—that the reason
for Gerber’s claims is not superior products, but a disregard for industry regulation.
2 The advertisement in Colgan, unlike Gerber’s labels, was actually false.
Id. at 682–83. However, we cite Colgan not as support for Bruton’s theory of
deception, but as support for the high evidentiary value of the labels in this case.
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consumer test. We reverse the district court’s grant of summary judgment to
Gerber on Bruton’s claims that the labels were deceptive in violation of the UCL,
FAL, and CLRA.
4. The district court erred in granting summary judgment to Gerber on
Bruton’s claims that the labels were unlawful under the UCL. The UCL’s
unlawful prong “borrows” predicate legal violations and treats them as
independently actionable under the UCL. Wang v. Massey Chevrolet, 97 Cal. App.
4th 856, 871 (2002). The best reading of California precedent is that the
reasonable consumer test is a requirement under the UCL’s unlawful prong only
when it is an element of the predicate violation. Compare, e.g., Consumer
Advocates v. Echostar Satellite Corp., 113 Cal. App. 4th 1351, 1354, 1360 (2003)
(holding that UCL claims were subject to the reasonable consumer test where the
predicate violations were of the FAL and CLRA, both of which require meeting the
reasonable consumer test); with Los Angeles Mem’l Coliseum Comm’n v.
Insomniac, Inc., 233 Cal. App. 4th 803, 835 (2015) (holding that a UCL claim was
properly stated—without mention of the reasonable consumer test—where the
predicate violation was of federal tax law). The predicate violation here is of
California’s Sherman Law, see Cal. Health & Safety Code §§ 110760, 110765,
which itself incorporates standards set by FDA regulations, see id. §§ 110100,
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110670. These FDA regulations include no requirement that the public be likely to
experience deception. See 21 C.F.R. §§ 101.13(b)(3), 101.60(c)(2)(v). We reverse
the district court’s grant of summary judgment to Gerber on Bruton’s claims that
the labels were unlawful in violation of the UCL.
REVERSED and REMANDED
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Bruton v. Gerber Products Co., No. 15-15174
O’SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:
While I join in Parts 1, 2, and 4 of the court’s disposition in this case, I must
respectfully dissent from Part 3, and from the majority’s conclusion that there is a
genuine issue of material fact regarding consumer deception in this case. I agree
with the district court that the record does not contain sufficient evidence upon
which a rational juror could conclude that a reasonable consumer would be
deceived as to the quality of Gerber’s products based on the challenged statements.
I thus would affirm the court’s grant of summary judgment on Bruton’s Unfair
Competition Law, False Advertising Law, and Consumer Legal Remedies Act
claims.
I
To prevail on any of these claims, Bruton must be able to prove (among
other things) that “a significant portion of the general consuming public” is likely
to be deceived by the contested label claims. Ebner v. Fresh, Inc., 838 F.3d 958,
965 (9th Cir. 2016) (internal quotation marks omitted). Bruton specifically argues
that the challenged nutritional statements on Gerber’s labels would cause
reasonable consumers to be misled about the quality of Gerber’s products (as
compared to nutritionally similar products that do not include such label claims).
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In support, she submitted as evidence: (1) the products’ labels themselves, (2) her
own testimony that she was misled about the quality of Gerber’s products, and (3)
two FDA warning letters regarding the products’ labeling.
First, the FDA warning letters do not help Bruton, as they do not address the
potential for consumers to be misled about the quality of Gerbers’ products.
Second, as the district court recognized, Bruton’s testimony about her own
confusion cannot satisfy the reasonable consumer standard, because “a few isolated
examples of actual deception are insufficient” to create a material dispute over the
likelihood of general consumer deception. Clemens v. DaimlerChrysler Corp., 534
F.3d 1017, 1026 (9th Cir. 2008) (internal quotation marks omitted). The majority
challenges neither of these conclusions.
II
The majority holds, however, that the very label statements that Bruton
challenges themselves supply sufficient evidence to satisfy California’s
“reasonable consumer” test. To do so, the majority mistakenly relies on Colgan v.
Leatherman Tool Grp., Inc., 135 Cal. App. 4th 663 (2006), a case that has little to
say about the circumstances before us.
In Colgan, the plaintiff alleged that Leatherman deceptively labeled its tools
as “Made in U.S.A.,” even though “significant parts of the tools”—including parts
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that were the main reason people bought the tools—were made outside the U.S.A.
Id. at 680 (internal quotation marks omitted). Thus, the court quite understandably
reasoned that the label “Made in U.S.A.” itself may evidence deception when, in
fact, the product was not made in the U.S.A. in a meaningful sense. See id. at
682–83. This seems straightforward. There is virtually no other way a consumer
could read “Made in the U.S.A.” but to mean that meant the product was indeed
manufactured in the U.S.A, and thus there seems little reason to require additional
evidence to confirm that reasonable consumers might have been deceived by such
a false assertion.
But this case involves no similar allegation of a false (or even mostly false)
factual assertion. To repeat, the question in this case is whether the challenged
nutritional statements on Gerber’s labels would cause a reasonable consumer to be
misled about the quality of Gerber’s products. Yet the challenged statements
themselves say nothing at all about the quality of Gerber’s products; they simply
report—accurately—certain nutritional features of the products. Bruton does not
claim that these statements are false or even misleading about the actual nutritional
content of the products (for example that a product labeled “no sugar added” in fact
included added sugar). Thus, to carry her burden at this stage, Bruton must
provide some evidence that reasonable consumers would see these truthful
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nutritional statements about Gerber’s products and be deceived into thinking such
products are somehow better than other products that are the same nutritionally but
which did not have the label statements.
There is nothing inherent in Gerber’s labels that would support an inferential
leap from factually correct nutritional statements to deceptive claims about product
quality. This is especially so because both Gerber’s and its competitors’ labels
included detailed information about their ingredients and nutritional contents.
Indeed, Bruton admitted that she actually reviewed the nutritional facts of both
Gerber’s products and its competitors, and thus she would presumably have seen
that they were nutritionally similar despite whatever additional nutritional labeling
Gerber’s products had. How those additional, accurate label statements are
inherently deceptive is far from self-evident, as it was in Colgan. And I do not
believe that there is any evidence to support the majority’s notion, Maj. at 4–5, that
the challenged statements make Gerber’s labels objectively more “attractive” to a
“a significant portion of the general consuming public,” Ebner, 838 F.3d at 965, or
that such a portion of consumers would conclude that any price or quality
difference between Gerber and its competitors is due specifically to the challenged
label statements (as opposed to any number of other reasons that may have led
Gerber’s nationally recognized brand to carry more market power).
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Accordingly, I agree with the district court that this body of
evidence—Bruton’s testimony, the FDA’s warning letters, and the product labels
themselves—is not enough to create a genuine dispute of material fact as to the
likelihood of general consumer deception about the quality of Gerber’s products. I
would affirm the grant of summary judgment on these claims, and I respectfully
dissent from the majority’s judgment to the contrary.
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