It seems that lately, all it takes to bring a false advertising class action regarding “all natural” or “no sugar added” representations on product packaging is the say-so of one consumer who claims the representations are misleading (even though they might not be technically “false”).

Indeed, at the motion to dismiss stage, courts tend to be quite consumer friendly, many times finding that bare allegations of deception are enough to move the case into discovery.

While this may be frustrating for many defendants who believe they have done nothing wrong, there is light at the end of the tunnel. Despite the ease with which these cases can move past the motion to dismiss phase, actually proving (not just alleging) that a reasonable consumer is likely to be misled presents more of a challenge.

Depending on the presiding court, there are varying levels of proof plaintiffs must meet to show that a reasonable consumer is likely to be deceived by challenged advertising. Some courts require a consumer survey, or some other extrinsic evidence, demonstrating that the alleged misrepresentations actually mislead consumers. Haskell v. Time.

Other courts hold that as long as the plaintiff introduces some evidence that reasonable minds could differ, the issue should be left to the jury to decide. Miletak v. Allstate Ins. Co.

Judge Illston in the Northern District of California recently faced this issue and granted the defendant’s motion for summary judgment because plaintiff did not present sufficiently credible evidence of deception.

Plaintiff alleged that Mott’s 100% Apple Juice was falsely labeled as “no sugar added” because it failed to comply with FDA labeling requirements.

Mott’s moved for summary judgment on several grounds, among them that the alleged misrepresentation was unlikely to deceive reasonable consumers. To support its argument, Mott’s submitted a consumer survey finding that the average consumer does not rely on “no sugar added” when purchasing a product.

In response, plaintiff filed an expert declaration criticizing the methodology of the consumer survey and proposing an alternative methodology. The court deemed this insufficient to prove consumers were misled, for the obvious reason that criticizing the methodology of a survey is not a substitute for actually introducing evidence.

Plaintiff’s own testimony that he relied upon the representation (hearkening back to evidence that would have been enough to overcome a motion to dismiss) did not carry the day on summary judgment.

As more of these “all natural” and “no sugar added” cases move past the pleading stage, the issue of the level of proof required to avoid summary judgment will likely be a hotly contested issue.

At least in Judge Illston’s courtroom the message is clear: plaintiffs must submit evidence to support their claims and may not simply hide behind conclusory and speculative expert opinion if they want to prevail on summary judgment.