Organic Baby Food Company Prevails in Court

     SAN FRANCISCO (CN) – A federal judge dismissed a class action that claimed Plum Organics misled consumers about ingredients in its baby foods and snacks.
     Kathryn Workman sued the Emeryville-based company in June, under the California Consumer Legal Remedies Act and the California Business and Professional Code. She claimed photos on Plum baby foods boxes do not accurately represent the products’ predominant ingredient.
     She claimed photos on boxes of Plum’s “Mighty 4” toddler fruit bars mislead consumers into thinking the snacks consist primarily of pumpkin, pomegranate, quinoa and yogurt.
     Though the fruit bars contain those ingredients, the predominant ingredients are apple, pear or banana, she said.
     “Plum organics claims to have dedicated its social mission to delivering nutrient rich, organic food into the hands of little ones in need across America,” the complaint states. “But in fact, Plum Organics fills its food pouches largely with cheap, watered-down apple purée.”
     Plum, the No. 2 brand of organic baby food in the United States, filed a motion to dismiss in August for failure to state a claim and to plead with sufficient particularity.
     U.S. District Judge William Alsup granted the motion Monday, citing Ashcroft v. Iqbal, which states that in a motion to dismiss, the court must take a complaint’s allegations as true, but must also rely on “judicial experience and common sense” to determine “whether those allegations amount to a plausible claim.”
     “Here, plaintiff has not met Iqbal’s plausibility requirement,” Alsup wrote. “One can hardly walk down the aisle of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient.”
     He added: “Every reasonable shopper knows that the devil is in the details. Moreover, any potential ambiguity could be resolved by the back panel of the products, which listed all ingredients in order of predominance, as required by the FDA.”
     Alsup also cited the Ninth Circuit ruling in Williams v. Gerber Products Co., which states that “reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.”
     Workman, also citing Williams, claimed that “California courts … have recognized that whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer” and that “motions to dismiss on the grounds that a reasonable consumer could not plausibly have been deceived should only be granted in ‘rare situations.'”
     She cited the Ninth Circuit’s declaration in Williams: “We do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception.”
     Alsup, however, said the ruling in Williams was based in part on the fact that the products in that case did not contain, to any degree, the ingredients represented on the package images.
     The ingredients at issue in Workman’s lawsuit, he said, while not the main ingredients in the product, are present in the product to some degree.
     “As an initial matter, Williams issued shortly before the Supreme Court significantly changed the Rule 12 pleading standards in Iqbal,” Alsup wrote. “Furthermore, our court of appeals’ main reservations about the deceptiveness of the fruit juice snacks label related to its affirmatively false statements. There, the display panel showed pictures of many fruits not actually contained in the product.”
     Workman’s attorney Robyn Crowther did not immediately respond to a request for comment Thursday.
     Workman sought restitution, disgorgement and an injunction ordering Plum to discontinue its “unlawful practices” and to launch a “corrective advertising campaign.”
     Although the court granted Plum’s motion for dismissal, Workman may have gotten what she wanted, at least in part.
     On Oct. 22, Plum announced plans to clear up the confusion about labeling on its baby foods, a move the company said was triggered by public concern.
     “Plum Organics … will modify the names of its baby and toddler pouches as well as tots snack bars in response to feedback received from parents and a letter from the nonprofit Center for Science in the Public Interest,” the company said in a statement. “As part of the agreement with CSPI [the Center for Science in the Public Interest], Plum Organics will name its baby pouches in order of predominance of major ingredients. Imagery on product labels will also reflect predominance. The changes will be made on a rolling basis, to be completed by October 2016.”
     Plum Organics attorney Ami Hamilton was not available for comment after business hours Thursday.
     Campbell’s Soup Company acquired Plum Organics in June 2013 and operates it as a standalone business. Plum Organics reported $93 million in gross sales in 2012.

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