Consumers Get Big Ninth Circuit Win in False Advertising Case

On July 28, 2020, the Ninth Circuit Court of Appeals reversed a decision to dismiss claims in Moore v. Mars Petcare US, Inc., a case brought against pet food manufacturers for false and misleading advertising of certain pet food products. The plaintiffs had alleged that certain products were marketed as “prescription” pet food even though they contained no added benefit and were no different than regular pet food.   

The district court dismissed these claims because it concluded that plaintiffs had failed to plead enough facts to show that prescription pet food and other pet food are not materially different, and that plaintiffs had failed to adequately allege how the use of the word “prescription” or “Rx” symbol caused any of their claimed losses.

In overturning the district court’s decision, the Ninth Circuit reaffirmed several well-established principles in favor of consumers. First, the court adopted the long-acknowledged principle that California laws prohibit not only advertising which is false, but also advertising which, although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public. Thus, a motion to dismiss a false advertising claim will generally not be granted, because whether a practice is deceptive is a question of fact.

Second, the court noted that misrepresentations on the front label are not automatically cured by information contained on the back label. If it “conflicts with, rather than confirms, the front label,” defendants will not be allowed to hide behind the small print on the back label.

Third, the court held that certain brand names by themselves can be misleading. Products with descriptive brand names often require of the consumer “little thought” making consumers more susceptible to misrepresentations because “they won’t have the time or interest to read about the product on the website or the back of the box.”

Under these long-standing principles, the Ninth Circuit found that the labeling of “prescription pet food” did in fact appear deceptive and misleading:

A reasonable consumer being told about “prescription pet food” may be surprised to learn that there are no drugs or controlled ingredient in the pet food by nature of brand names like “Prescription Diet” or an “Rx” symbol on the food packaging.

Moore v. Mars Petcare US, Inc., No. 18-15026, 2020 WL 4331765, at 6 (9th Cir. July 28, 2020). 

The Moore decision is a big win for consumers as it signals the Ninth Circuit’s commitment to permitting false advertising claims to proceed through the early stages of litigation, and serves as a warning to defendants seeking to end false advertising litigation before it even begins.

A copy of the Court’s Order can be found here.