Plaintiff’s Key Contentions:

• • To Sorkin and other consumers, “Farm Fresh” conveys hens “living a natural life on a farm, pecking and playing in fields,” not confined to cages
  • A consumer survey showed 41% of Kroger customers thought “Farm Fresh” eggs came from cage-free hens, while 45% were unsure
  • “Farm Fresh” is misleading because eggs with this label aren’t produced on real farms as consumers envision but in large industrial operations
  • Sorkin paid a premium price for “Farm Fresh” eggs ($1.49+/dozen) and wouldn’t have bought them or paid as much if not for the deceptive labeling
  • Use of the term breached the ICFA by misrepresenting the eggs’ sourcing in a way that misled and damaged Sorkin and the class

Kroger’s Key Defenses:

• • Nothing about “Farm Fresh” suggests the hens were uncaged or free-range – it simply means fresh eggs direct from a farm
  • “Farm Fresh” is truthful puffery, unlike terms like “free-range” or “cage-free” that do make claims about hens’ living conditions
  • Context also shows customers have options like cage-free, free-range or organic eggs if concerned about animal welfare
  • Sorkin relies on an implausible interpretation of “Farm Fresh” that the label simply doesn’t convey to reasonable consumers
  • Plaintiff failed to adequately plead deception as required for an ICFA claim by showing a majority of reasonable consumers would be misled

Key Case Questions:

• • Would a reasonable consumer interpret “Farm Fresh” as a representation the eggs are from free-range, pasture-raised hens?
  • Is “Farm Fresh” non-actionable puffery or an objective factual claim about the eggs’ sourcing?
  • Did Sorkin plausibly plead that “Farm Fresh” is likely to deceive a significant portion of reasonable consumers?
  • Can extrinsic evidence like consumer surveys make an otherwise implausible deception claim viable?
  • How much should context like other label options factor into whether a claim is misleading?

Court Holding & Impact:

• • The court dismissed Sorkin’s amended complaint for failure to state a deceptive labeling claim under the ICFA
  • Judge found “Farm Fresh Eggs” label was not misleading as a matter of law based on the language itself and context
  • Held plaintiff did not plausibly allege that a significant portion of reasonable consumers would perceive a cage-free or free-range claim
  • Shows high bar for pleading deception based on labeling and importance of more than an idiosyncratic interpretation by some consumers
  • Suggests general, laudatory food labels less likely to be actionable misrepresentation vs. specific factual claims

Key Takeaways for Consumers:

• • Look for objective terms like “free-range”, “pasture-raised” or “cage-free” if concerned about egg-laying hens’ welfare
  • Be wary of reading specific meaning into general claims like “Farm Fresh” that don’t expressly address animal treatment
  • Consider the full labeling context, including other options, to assess what information the seller is actually conveying
  • Understand not every labeling term you dislike will be actionable as misleading – puffery is common in food marketing
  • If you suspect deceptive labeling, gather evidence a substantial portion of consumers, not just you, would be misled

Key Takeaways for Companies:

• • Use caution with ill-defined claims that could be misconstrued as a factual representation vs. opinion or puffery
  • Consider what implied claims consumers may read into labeling and if that aligns with reality to reduce misrepresentation risk
  • Provide specific labeling options to highlight product differences so general claims are less likely to be seen as misleading
  • Even some consumer confusion may not make a claim deceptive if an interpretation isn’t reasonable to most shoppers
  • Defeating misrepresentation suits on a motion to dismiss can avoid costly discovery and class treatment down the line

Questions: Deceptive Food Labeling Claims

• • 1. Which of the following would likely be considered a factual claim rather than puffery?
    • A) “All Natural”
    • B) “Farm Fresh”
    • C) “Made With Real Fruit”
    • D) “America’s Favorite”
  • 2. What must a plaintiff show to plead a deceptive labeling claim under most consumer protection laws?
    • A) At least one consumer was actually misled
    • B) The labeling claim violates a specific regulation
    • C) A significant portion of reasonable consumers would likely be deceived
    • D) The plaintiff suffered physical injury from the mislabeling
  • 3. How do courts determine whether labeling is deceptive as a matter of law?
    • A) If the plaintiff testifies they were personally misled
    • B) Based on a reasonable consumer standard and context
    • C) Only if a majority of consumers surveyed say it’s misleading
    • D) Any ambiguity must be construed against the defendant
  • 4. Why is it harder to base misrepresentation claims on general or laudatory labeling terms?
    • A) They are presumed to be subjective opinion, not factual claims
    • B) They are categorically exempt from deceptive labeling laws
    • C) They are always true since the advertiser gets to define them
    • D) They are never printed on labels, only stated in ads
  • 5. How can a plaintiff strengthen a claim that labeling is likely to deceive consumers?
    • A) Point to violations of specific labeling regulations
    • B) Provide survey evidence of actual consumer confusion
    • C) Cite complaints to the company or regulators about the claim
    • D) All of the above

Answers: Deceptive Food Labeling Claims

• • 1. C) A claim about the inclusion of a specific ingredient is more likely to be a factual assertion than a general opinion.
  • 2. C) Most consumer protection laws require a plausible allegation the labeling would likely mislead a significant portion of reasonable consumers.
  • 3. B) Courts assess labeling claims for deceptiveness based on context and a reasonable consumer standard, not just an individual plaintiff’s testimony.
  • 4. A) General or laudatory claims are more likely to be viewed as non-actionable puffery or opinion rather than factual representations.
  • 5. D) Extrinsic evidence of confusion, violations of regulations, and consumer complaints can all bolster an argument the labeling is deceptive.