The Ninth Circuit this week declined to revive a proposed class action in Washington federal court accusing defendant of mis-labeling a water drink containing caffeine.  See Harold Maple v. Costco Wholesale Corporation, No. 13-36089, 14-35038 and 14-35059, 2016 WL 2621345 (9th Cir. 5/9/16).

This was a putative class action arising from allegedly unfair or deceptive statements found on the label of a product known as VitaRain Tropical Mango Vitamin Enhanced Water Beverage (“VitaRain”) bottled by Niagara Bottling and sold by Costco. The putative class was defined as all Washington residents who purchased the VitaRain product over the four years preceding the filing of the lawsuit.
Plaintiff’s First Amended Complaint asserted claims for violations of the Washington Consumer Protection Act (“CPA”), RCW 19.86.010 et seq.; misrepresentation; and negligence. Plaintiff specifically alleged that the VitaRain beverage (1) lacked a front-facing disclosure that the beverage contains caffeine; (2) failed to disclose the relative amount of caffeine in the beverage; and (3) falsely claimed that the beverage was a “natural tonic” and that it contained “natural caffeine.”

Thus this case falls within the ongoing trend of litigation challenging anything and everything a product maker says on a label, no matter how innocent or general.

The district court dismissed the complaint, and plaintiff Harold Maple appealed. The 9th Circuit affirmed that the district court correctly held that the complaint failed to state a claim. As a matter of law, the name of the beverage is not “likely to mislead a reasonable consumer.” Panag v. Farmers Ins. Co. of Wash., 204 P.3d 885, 894–95 (Wash.2009). Here, the term “Vita” could mean many things,not necessarily vitamins, and rain could not be an actual ingredient, and the label contained no misleading statements.  To the extent that Plaintiff’s claim challenged the labeling of the type of “caffeine” or “tonic” as “natural” or “all natural” and the failure to describe the caffeine and other ingredients as “unnatural,” the claim failed because Plaintiff did not allege that he read those parts of the label. Accordingly, he could not establish causation. See, e.g., Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 22 (Wash.2007) (“A plaintiff must establish that, but for the defendant’s unfair or deceptive practice, the plaintiff would not have suffered an injury.”).

The district court also correctly held that dismissal without leave to amend was proper. On appeal, Plaintiff argued that amendment could save the complaint because he could somehow allege a subclass of plaintiffs who did read the relevant parts of the label. But because Plaintiff’s own individual claim failed, dismissal without leave to amend was correct.  Here’s the useful point – the potential existence of other classes of which Plaintiff is not a member is irrelevant. Sanford v. MemberWorks, Inc., 625 F.3d 550, 560–61 (9th Cir.2010); Boyle v. Madigan, 492 F.2d 1180, 1182 (9th Cir.1974) (citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

The only error was dismissing without prejudice, which the panel corrected.