The Ninth Circuit recently confirmed that when a putative class alleges that a marketing representation is deceptive because it is inconsistent with industry standards, plaintiffs must offer common, class-wide proof of deception. See Rusoff v. The Happy Group, Inc., No. 24-7706 (9th Cir. Aug. 17, 2026).
In Rusoff, the defendant represented on its egg cartons that its hens were “pasture raised on over 8 acres.” The plaintiffs alleged that this representation was deceptive because the company’s practices did not comply with the standards of “pasture raised” set forth by industry groups the American Humane Association and Humane Farm Animal Care.
At the class certification stage, the plaintiffs contended that they offered class-wide evidence of deception based on the reports of two experts working in tandem. One expert opined that there was in fact an “industry standard” for the term “pasture raised” and that a reasonable consumer would expect an egg producer using the “pasture raised” term is adhering to that industry standard. The other, a purported survey expert, opined that consumers understood “pasture raised on over 8 acres” to convey that the eggs are pasture raised.
The district court excluded the first expert, concluding that his methodology—including photographing egg cartons in supermarkets near his home—“did not meet the standards expected of an expert witness evaluating consumer understanding of egg industry standards.” Without his opinion, the Ninth Circuit held, the plaintiffs lacked any common, class-wide proof that would connect a reasonable consumer’s understanding of “pasture raised” to the purported industry standard that underlay the plaintiffs’ deception claim.
As the Ninth Circuit summarized, “[w]here the theory of deception is tied to an industry standard, evidence must be brought forward showing that there is a commonly understood industry standard, and that a reasonable consumer would associate a given representation with that standard.” Because the plaintiffs had failed to offer such proof, they lacked common proof of deception—foreclosing certification.
The important decision reinforces that false advertising defendants can defeat class certification by showing the absence of common proof on the foundational element of deception, including where plaintiffs fail to offer common proof that a reasonable consumer would be deceived in the way plaintiffs allege.