Companies in the food, beverage, pharmaceutical, and other industries continue to face litigation regarding their products’ labeling, including as to whether certain representations on labels are deceptive or misleading.  In the Second Circuit and elsewhere, these lawsuits tend to turn on what an objective “reasonable consumer” would understand the representation at issue to mean, and whether that “reasonable consumer” would likely be misled under the circumstances.  In Bustamante v. KIND, LLC, 2024 WL 1917155 (2d Cir, May 2, 2024), the Second Circuit confirmed how important expert testimony can be to that question, and how efforts to exclude expert testimony can ultimately be the difference between winning and losing. 

In Bustamante, the plaintiffs’ consolidated complaint alleged that KIND’s “All Natural” labeling on their various granola bar and other products was false and deceptive because the products contained certain ingredients that were allegedly “non-natural.”  After the district court granted class certification, and following further discovery, the defendant moved for summary judgment, and sought to exclude plaintiffs’ experts.  The district court agreed with the defendant that plaintiffs’ expert testimony was inadmissible under the Federal Rules of Evidence, and accordingly granted summary judgment in defendant’s favor.

The plaintiffs appealed, focusing mainly on the district court’s exclusion of their experts and summary judgment.  At the district court, plaintiffs proffered two experts, Dr. J. Michael Dennis (a consumer survey expert) and Dr. Anton Toutov (a chemist).  Dr. Dennis conducted a “consumer perceptions” survey to test how consumers might perceive the meaning of “All Natural” on a product label.  But as the district court found and the Second Circuit agreed, Dr. Dennis’s survey questions were biased and leading because they improperly suggested the “correct” answer to the participant.  See 2024 WL 1917155, at *4–6.  For example, the survey asked a question related to the participants’ expectation for a product labeled “All Natural,” but only gave the following choices as answers: “(a) Will NOT contain artificial and synthetic ingredients; (b) Will contain artificial and synthetic ingredients; or (c) Not sure/No expectation.”  Id. at *5 (cleaned up).  Given how the question was worded, it was unsurprising that “86.4% of consumers expected [that] the Product with the ‘All Natural’ claim will NOT contain artificial and synthetic ingredients.”  Id.  Because the questions in the survey were “inappropriately leading and manipulative,” the Second Circuit found no error in the district court’s conclusion that the survey evidence would not help the trier of fact and would risk confusing the jury (or in other words, to the extent the survey had any probative value, it was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury).  Id. at *6 (citing Fed. R. Evid. 403).

As for Dr. Toutov, he offered testimony regarding the ingredients in the defendant’s products but made no attempt to relate his opinion to the definitions of “All Natural” offered by the plaintiffs or Dr. Dennis.  Nor did he actually analyze the ingredients in defendant’s products (chemically or otherwise) or consider how the products were actually manufactured; rather he simply “considered how the challenged ingredients were ‘typically’ sourced and concluded that many of the challenged ingredients are not ‘natural’ as he framed the term.”  Id. at *7 (emphasis added).  Because neither Dr. Toutov nor Plaintiffs offered any evidence that Dr. Toutov was testing whether the ingredients were “All Natural” as a reasonable consumer or plaintiffs would understand that term, his evidence was “neither meaningful nor relevant to a reasonable consumer’s understanding of the phrase ‘All Natural,” and was properly excluded.  Id. at *8 (cleaned up).

Without expert testimony in support of their arguments on a “reasonable consumer’s understanding of ‘All Natural,’” id., the Second Circuit quickly rejected plaintiffs’ argument that the district court erred in granting defendant summary judgment.  Importantly here, the Second Circuit distinguished between consumer deception cases at the motion to dismiss stage, which do not yet require evidence, and those cases at summary judgment, which do need admissible “evidence of a reasonable consumer’s understanding” of the claim in question.  Id. at *9 (emphasis added).  Because plaintiffs had none, the district court did not err in granting defendant summary judgment.

Although Bustamante did not go as far as holding that expert evidence is always required in reasonable consumer cases, it solidified the importance of that evidence, and how the absence of admissible expert testimony can be a death knell for those claims.  Defendants facing challenges to labels and other deception claims should think early and often about possible challenges to plaintiffs’ proposed experts, as successful Daubert challenges may ensure a successful end to the litigation.  And when facing consumer survey evidence, defendants should think carefully about whether the survey questions can be fairly described as biased and/or misleading.

Photo of Jeffrey Huberman Jeffrey Huberman

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among…

Focusing on complex class actions and commercial litigation, Jeffrey Huberman has handled matters involving a range of issues, including products liability, consumer protection, breach of contract, tort, and statutory claims.

Jeffrey works with clients in the sports, financial services, and pharmaceutical industries, among others, using his substantial experience in all stages of litigation, including:

  • dispositive motions;
  • fact and expert discovery;
  • class certification;
  • summary judgment; and
  • trial

Jeffrey has first-chaired fact and expert witness depositions and has drafted dispositive motions in both federal and state court for clients. In addition, Jeffrey maintains an active pro bono practice focused on veterans’ rights and criminal justice.

Prior to attending law school, Jeffrey worked for the Massachusetts House of Representatives.