Supermarket chain Kroger sells a spreadable fruit product called, "Just Fruit."  The front of the label describes the product as "spreadable fruit" and shows a picture of the fruit that's in the product.  If a product is labeled "Just Fruit," does that mean that it only contains crushed-up fruit or could the product also contain ingredients that were derived from fruit but don't actually exist in nature in that form?  The was the issue recently considered by the Ninth Circuit. 

A consumer sued Kroeger for false advertising under Oregon law, alleging that Kroger misled consumers by labeling its spreadable fruit product as "Just Fruit."  The consumer argued that Kroger shouldn't be calling the product "Just Fruit," because it contains ingredients that were "extracted and isolated from actual fruit," including fruit syrup, pectin, calcium citrate, apple juice concentrate, and citric acid.  The consumer argued that these ingredients aren't "fruit" because they are included in the product in a form that "does not exist in nature."  

The lower court had dismissed the case, and the consumer appealed.  The Ninth Circuit affirmed the dismissal.  Here's why. 

First, the court considered whether the claim "Just Fruit" was objectively false.  The court said it was not, since each of the ingredients in the product was, in fact, derived from fruit.  The court noted that many other spreadable fruit products on the market do actually contain non-fruit ingredients, such as flavor extracts, non-fruit sugar, food coloring, and animal gelatin.  

Next, the court considered whether the "Just Fruit" claim was likely to mislead a reasonable consumer because of the fruit-derived added sweeteners that are in the product.  In other words, does the claim create "a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled."  The Ninth Circuit held that the claim was not likely to mislead reasonable consumers, explaining that, "the 'Just Fruit' label does not expressly or impliedly say anything about the sugar content of the product, nor would a reasonable consumer interpret it as doing so -- particularly when spreadable fruit products tend to contain added sugars."  

What's interesting to me about this decision is that the 9th Circuit didn't wrestle at all with whether there was some sort of implied claim about the level of processing that that was involved in the manufacturing of the product.  Sure, the product only contains fruit -- but does "just fruit" communicate something about how the product is actually made?  Contrast this decision (which is very good for advertisers, obviously), for example, with the Federal Trade Commission's lawsuit against Kohl's, where the FTC told Kohl's it couldn't advertise its sheets as being made from bamboo -- even though they were actually made from bamboo -- because of the level of processing that was required to turn bamboo into sheets. 

Vitort v. Kroger, 2023 WL 3143690 (9th Cir. 2023).