On April 28, 2023, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit upheld a lower court’s dismissal of a lawsuit against Kroger alleging that the company misleadingly labeled spreadable fruit products as “Just Fruit.”

Plaintiff Sarah Vitort alleged that Kroger violated the Oregon Unlawful Trade Practices Act because the “Just Fruit” product included fruit syrup, pectin, calcium citrate, apple juice concentrate, and citric acid. Plaintiff argued that even though those ingredients could be extracted from fruit, they were not actually fruit because they “appear in a form that does not exist in nature.”  The panel held that the “Just Fruits” label was not objectively false because each ingredient was derived from fruit.

Additionally, the panel applied the reasonable consumer test and held that the “Just Fruit” label was not likely to mislead a significant portion of reasonable grocery shoppers.  The panel held that the “Just Fruit” label did not say anything about the sugar content of the product, and that a reasonable consumer would not interpret that label as making a representation about sugar content.  The court held that the reasonable interpretation of the “Just Fruit” label foreclosed Plaintiff’s claim that Kroger committed an unlawful trade practice under Oregon law.

Although this is an unpublished decision with limited precedential effect, the Ninth Circuit upholding a dismissal of a food false advertising case is notable because in most cases, courts have found (and the California Attorney General’s office has advocated) that the reasonable consumer standard requires a fact-based analysis that cannot be determined on a motion to dismiss.

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