October 3, 2016 - False Advertising, Food Misbranding

A Berry Mixed Decision: Consumer Class Action Challenging Packaging of “Himalania” Goji Berries Largely Survives Motion to Dismiss

On September 2, 2016, United States District Judge Dean P. Pregerson for the Central District of California granted in part and denied in part a motion to dismiss a class action complaint alleging violations of the UCL and CLRA against defendants that market and sell “Himalania” brand goji berries.  Torrent v. Thierry Ollivier et al., No. 2:15-cv-02511 DDP (JPRx), Dkt. No. 76.  The court held that the plaintiff’s claims for injunctive relief survived to the extent that they were based on the allegation that the product’s packaging created an “impression” that the berries were harvested from the Himalayas.  The court dismissed plaintiff’s claims to the extent that they were based on a reasonable consumer’s knowledge of Chinese geography.

Consumer Challenges “Himalania” Goji Berries’ Packaging.  In April 2015, Plaintiff Nicolas Torrent filed a class action lawsuit on behalf of himself and California purchasers in the Central District of California, seeking injunctive relief and damages under California’s UCL and CLRA against the founder, marketer, and seller of “Himalania” brand goji berries.  Torrent alleged that the defendants “falsely creat[ed] the impression in the minds of its consumers that their Himalania brand goji berries are harvested in and transported from the Himalayas mountain range[,]” when “[i]n fact, the berries are harvested in the Ningxia province of China, which is not what the reasonable consumer considers as the Himalayas.”

Court Dismisses UCL and CLRA Claims Based on a Reasonable Consumer’s Knowledge.  Torrent’s claims were based in part on the allegation that the goji berries “come from the Ningxia province of China, which is not what a reasonable consumer considers as the Himalayas.”  The defendants argued that members of the public were not likely to be deceived by the packaging because “the reasonable consumer does not know about Ningxia province’s location relative to the Himalayas.”  The court agreed with defendants, finding that “Plaintiff cannot [] plausibly allege that reasonable consumers are well-versed enough in Chinese geography to have any beliefs about Ningxia’s location or whether the Ningxia province qualifies as ‘Himalayan.’”

UCL and CLRA Claims Based on “Creating an Impression” Survive.  Torrent’s claims were also based on the allegation that the goji berries’ packaging “created the impression” that the product was harvested from the Himalayan mountains.  Torrent argued that this “impression” was created by the packaging’s portrayal of images of mountains and statements including “The most famous berry in the Himalayas” and “Goji berries originate in the high plateaus of the Himalayan mountains.”  The court held that “[t]hese facts, putting aside any allegations about consumers’ knowledge of Ningxia, themselves could support a claim that Defendants’ packaging would lead a reasonable consumer to believe that Defendants’ berries are harvested in the Himalayas, when in fact the berries are not harvested in the Himalayas.”  The court declined to dismiss the UCL and CLRA claims to the extent they were based on wrongful “impression” allegations.

Himalayn Takeaway.  The holding in this case highlights a potentially significant and relatively novel basis for a motion to dismiss:  that the plaintiff cannot plausibly allege that a reasonable consumer would have the requisite knowledge to be deceived.