Ryan Vanderford is a Senior Associate in the Los Angeles, CA office of Pillsbury Winthrop Shaw Pittman.
How “reasonable” are reasonable consumers? It is a question many district courts find themselves analyzing at the outset of consumer class-action labeling lawsuits these days. With the rise of food labeling class actions over the last decade, district courts across the country have become more assertive in applying the reasonable consumer standard to dismiss such claims at the pleading stage. Earlier this year, the Ninth Circuit reversed a district court’s dismissal of a class-action labeling complaint under the reasonable consumer standard in Kang v. P.F. Chang’s China Bistro, Inc., No. 5:19-cv-02252-PA-SP (9th Cir. Feb. 9, 2021). While at first glance this is a discouraging development, the decision’s dissent should instill confidence at the district court level and encourage courts to continue applying the reasonable consumers standard to dismiss class-action labeling claims as a matter of law.
To survive the pleading stage, a plaintiff’s claims under California’s Unfair Competition Law (“UCL”), False Advertising Law, and Consumer Legal Remedies Act (“CLRA”) must plausibly allege that reasonable consumers “are likely to be deceived” by a defendant’s use of an alleged false or misleading statement. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008).
In Kang, a plaintiff alleged that P.F. Chang’s inclusion of the term “krab mix” (yes, “krab” with a “k”) in the ingredient list for certain of its sushi rolls likely deceived reasonable consumers into thinking that the sushi rolls contain at least some real crab meat when in fact they contain none. The California district court concluded that plaintiff’s allegations were implausible on their face and accordingly granted defendant’s motion to dismiss. The Ninth Circuit reversed, arguing that because the term “krab mix” lacks a commonly understood meaning, reasonable consumers could understand the term to mean the item contains a mixture of imitation and real crab. Notably, the Ninth Circuit acknowledged that “reasonable consumers confronted with the fanciful spelling of “krab” on the menu would not assume they were purchasing a sushi roll with 100% real crab meat.” The Ninth Circuit also noted that even though the term “crab” appeared elsewhere on the ingredient list, it could not be assumed that reasonable consumers would notice.
The dissenting opinion in Kang deftly picks apart the majority’s reasoning, summarizing the absurdity of plaintiff’s claim in four sentences:
[Plaintiff’s] complaint contends he bought [P.F. Chang’s sushi rolls] because he read and relied on the “false and misleading” menu description ‘krab mix.’ Kang claims that he believed he was getting crab. He further claims that he wouldn’t have bought the ‘krab’ had he known ‘krab’ wasn’t crab. Thus, he tells us he was ‘deceived.’
As the dissent correctly points out, a reasonable consumer is not the “least sophisticated” or “most gullible” consumer. Rather, the standard requires a determination of whether a significant portion of ordinary consumers, acting reasonably, would be deceived. In this instance, would the ordinary California consumer really think “krab mix” contains real crab meat? The dissent answered no. “The majority fails to give the ordinary California consumer enough (or any) credit.”
The dissent found the “k” in “krab” to be a “dead giveaway.” That is because reasonable consumers understand that silly spellings materially change the meaning of a word:
[T]he whole point of the intentional misspelling is to make ‘humorous use . . . of words having the same or nearly the same sound but different meanings.’ Pun, Webster’s Third New Int’l Dictionary (1986). And this kind of advertising is now commonplace in the food industry, from ‘cavi-art’ (which is not caviar) to ‘tofurky’ (which is not turkey). It is implausible that an ordinary consumer, with ordinary common sense, would think that ‘krab’ means crab meat, and on that point the majority appears to agree.
The dissent also took issue with the majority’s claim that reasonable consumers could interpret “krab mix” to mean “a mixture of imitation and real crab.” “Krab” does not mean “real crab.” “Mix” means only a mixture of ingredients. Thus, “krab mix” can only reasonably be understood to mean (1) a mixture of ingredients constituting “krab,” or (2) a mixture of “krab” and other ingredients. Uncertainty about what constitutes that mixture does not make it reasonable to assume it includes real crab meat. As the dissent notes, such wishful thinking on plaintiff’s part does not suffice to make a plausible claim.
Contrary to the majority, the dissent found the use of the word “crab” elsewhere on the ingredient list to be another dead giveaway. As noted above, the reasonable consumer does not lack common sense. “[W]hen confronted with both “krab mix” and “crab” on the same menu, such a consumer knows that one is not the other … the ingredient is called ‘krab mix’ and not ‘crab mix.’”
The dissent’s parting words offer encouragement to district courts grappling with the reasonable consumers standard at the pleading stage:
The real harm here comes from allowing such implausible claims as Plaintiffs’ to proceed, which will increase costs to all consumers. As the district court got it exactly right, I respectfully dissent.
Indeed, consumer class defendants should continue to vigorously oppose such claims. “Krab” does not mean “crab.”