26 Cal.App.5th 1156
Cal. Ct. App.2018Background
- Plaintiff William Brady sued Bayer (maker of One A Day VitaCraves gummies) alleging the front label "One A Day" and the bottle quantity implied a one-gummy-per-day dosage, while the back label (in small print) directs consumers to take two gummies daily.
- Claims asserted: violations of the Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and breach of express warranty (Cal. Com. Code § 2313).
- Trial court sustained Bayer’s demurrer without leave to amend, relying on federal district decisions (Howard and Goldman) that dismissed similar claims at pleading stage. Brady appealed.
- The Court of Appeal reversed, holding Brady’s UCL, CLRA, and express warranty claims could survive demurrer because the label’s front-back presentation could mislead reasonable consumers.
- Key factual point: the contradictory message—prominent front-branding “One A Day” vs. a back-label serving size of two gummies—meant consumers might reasonably believe one gummy supplied a day’s vitamins.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the packaging is misleading under UCL/CLRA | Brady: Prominent “One A Day” implies one gummy supplies a day’s vitamins; back-label fine print does not cure that impression | Bayer: Reasonable vitamin purchasers inspect back-label; serving size and supplement facts make clear two gummies equal one serving | Reversed demurrer: reasonable consumers might be misled; issue is factual and survives pleading stage |
| Whether the brand name is literally false or actionable | Brady: Brand conveys an affirmative promise (one per day); in context it is false for this gummy product | Bayer: Brand is not misleading because dosage/serving info appears on label elsewhere | Court: In context the brand can be necessarily misleading by implication; literal truth defense fails at pleading stage |
| Whether back-label disclosures defeat front-label impression as a matter of law | Brady: Back disclosure is small and contradictory; front must not be negated by hidden qualifiers | Bayer: Back panel contains required facts (serving size, servings per container) so no deception as a matter of law | Court: Front-back contradiction like in Williams v. Gerber can preclude dismissal; cannot decide as matter of law on demurrer |
| Whether Brady stated an express warranty/breach claim | Brady: Front label created an express/implied warranty of a 100-day supply (one per day); back fine print is not a conspicuous disclaimer | Bayer: Any apparent warranty is contradicted by specific label language (serving size) | Court: Express warranty claim survives; disclaimer/modification not conspicuous enough to defeat warranty at pleading stage |
Key Cases Cited
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir.) (front-label impressions cannot be negated by contradictory back-panel disclosures at pleading stage)
- Novartis Consumer Health, Inc. v. Johnson & Johnson–Merck Consumer Pharms. Co., 290 F.3d 578 (3d Cir.) (a product name may convey an implied, actionable representation when the audience would recognize the claim as readily as if explicitly stated)
- Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6 (7th Cir.) (trade name “Ricelyte” held misleading where name implied a substantive relation not present)
- Clorox Co. v. Proctor & Gamble Co., 228 F.3d 24 (1st Cir.) (literal falsity or necessarily implied false claims in names/labels are actionable)
- National Nutritional Foods Ass’n v. Food & Drug Admin., 504 F.2d 761 (2d Cir.) (distinguishing sophisticated vs. ordinary consumers in nutrition/vitamin contexts)
- National Nutritional Foods Ass’n v. Mathews, 557 F.2d 325 (2d Cir.) (recognizing diversity among vitamin consumers and rejecting a one-size regulatory approach)
- Benson v. Kwikset Corp., 152 Cal.App.4th 1254 (Cal. Ct. App.) (brand representations may be deceptive when they are literally false or convey necessary implication)