July 23, 2021

Volume XI, Number 204

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July 22, 2021

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Ninth Circuit Affirms Dismissal of Trader Joe’s Honey False Advertisement Lawsuit

  • On July 15, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court’s dismissal of class-action lawsuit alleging that Trader Joe’s misleadingly labeled its store brand honey as “100% New Zealand Manuka Honey.”

  • The Manuka flower is believed to have antibacterial properties and provide significant health benefits. Plaintiffs’ independent testing revealed that the honey contained only between 57.3% and 62.6% honey from Manuka flower nectar (as estimated by the pollen content of the honey). Plaintiffs alleged that they had been deceived into believing that the honey was made completely from the Manuka flower because of the “100% New Zealand Manuka Honey” representation and because “Manuka Honey” was listed as the sole ingredient on the ingredient list.

  • The Ninth Circuit disagreed that the labeling is deceiving. The Court noted that it is impossible to have honey derived 100% from a single flower because bees may pollinate different types of flowers and beekeepers cannot completely prevent this. As a result, FDA permits honey to be labeled with the name of the plant or blossom if the producer has reason to believe it is the chief floral source of the honey.  See FDA’s Honey Guidelines at 5. And, since Plaintiffs’ own tests revealed that the majority of honey was derived from Manuka flower, this standard had been met.

  • The Court also rejected the argument that the representations were misleading even where the labeling was technically accurate under FDA’s Guidelines. In particular, the Court held that “100% New Zealand Manuka Honey” was ambiguous (i.e., could be a claim that the product was 100% Manuka Honey or 100% derived from Manuka flower) and that other information available to the consumer should be consulted to resolve the ambiguity. The Court held that a reasonable consumer would not have been deceived because of (1) the impossibility of making honey 100% from Manuka or any other floral source (the court noted that a purchaser of a niche product such as this are “more likely to exhibit a higher standard of care”), (2) the low price of the honey, and (3) a “10+” rating on the label, which graded the product on concentration of honey derived from Manuka flower nectar, and for which the highest score was 26+ (although the label did not include any information about the scale).

  • While the Court’s decision notes that ambiguity can be used by advertisers to confuse, it discounted those concerns in this case because Trader Joe’s had engaged in no conduct intended to deceive, i.e. adding in other ingredients; the bees and not Trader Joe’s had made the honey.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 201
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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