Our readers know that vanilla-based litigation remains active.  Yet another proposed class claim fell short in Howard Clark v. Westbrae Natural Inc., No. 3:20-cv-03221 (N.D. Calif. 12/1/20).  Plaintiff  alleged that the use of the word “vanilla” on the label of Westbrae Natural, ’s organic unsweetened vanilla soymilk misrepresents to consumers that the product’s vanilla flavor is derived exclusively from the vanilla bean plant. Plaintiff made various California consumer protection law claims on behalf of a proposed class of California consumers.

Plaintiffs cited a survey of over 400 consumers showed that over 69.5% of the consumers believed the “vanilla” representation on the product meant the product’s vanilla flavor comes exclusively from the vanilla bean. And scientific testing of the product allegedly revealed that the vanilla flavoring of the product did not come exclusively from the vanilla bean but rather comes from a non-vanilla source. Plaintiff alleged that he would not have purchased or paid a premium price for the Product if he had realized that its vanilla flavor does not come exclusively from the vanilla bean.

In assessing the motion to dismiss, the court took judicial notice of the full label.  A court may take judicial notice of documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff’s pleading. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). Courts regularly have taken judicial notice of images that more completely display the packaging in question, on the ground that the packaging of the defendant’s product is publicly available and not subject to reasonable dispute. Prescott v. Nestle USA, Inc., No. 19-CV-07471-BLF, 2020 WL 3035798, at *2 (N.D. Cal. June 4, 2020).

Defendant’s primary argument is that Plaintiff’s UCL, CLRA, and false advertising claims must be dismissed because the FAC fails to allege that a reasonable consumer would be deceived by the “vanilla” label into believing that the product’s vanilla flavor is derived exclusively from the vanilla bean.
To prevail on such claims, a plaintiff must show that members of the public are likely to be deceived. This showing requires more than a mere possibility that the label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner” Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 507 (2003). Rather, the reasonable consumer standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.

Here, plaintiff did not allege facts that plausibly support an inference that a reasonable consumer would interpret “vanilla” on the label to mean that the product’s flavor is derived exclusively from the vanilla bean. The word “vanilla” itself does not suggest to the reasonable consumer that the flavor comes exclusively from the vanilla bean. See Pichardo v. Only What You Need, Inc., Case No. 20-cv-0493 (VEC), 2020 WL 6323775, at* 3 (S.D.N.Y. Oct. 27, 2020) (finding that a reasonable consumer would not believe the label “smooth vanilla” itself means that the vanilla flavor is exclusively or even mostly comes from vanilla extract (the vanilla bean). Further, the label did not contain any other words or pictures that suggest the vanilla flavor is derived exclusively from the vanilla bean.

Plaintiff’s allegation regarding the results of a  survey of 400 consumers did not push plaintiff’s reasonable consumer allegation over the plausibility line. See Tucker v. Post Consumer Brands, LLC, No. 19-CV-03993-YGR, 2020 WL 1929368, at *5 (N.D. Cal. Apr. 21, 2020) (noting that a consumer survey on its own cannot satisfy reasonable consumer test); Yu v. Dr. Pepper Snapple Group, Inc., No. 18-CV-06664-BLF, 2020 WL 5910071, at *4-5 (N.D. Cal. October 6, 2020) (same). The Court noted that plaintiff did not allege precisely what the survey asked so it was impossible to infer that notwithstanding the commonsense interpretation of “vanilla” as not implying flavored exclusively with vanilla bean, plaintiff had plausibly alleged that it does. At bottom, the vague survey allegation did not make plausible that reasonable consumers understand that “vanilla” soymilk is flavored exclusively with vanilla bean.

Order can be found at clark-1333734-https-ecf-cand-uscourts-gov-doc1-035119992794