Food & Alcohol

Published on May 8th, 2019


Are You a ‘Reasonable Consumer’?

In determining whether allegations of false advertising have merit, a court will sometimes ask itself, Would a “reasonable consumer” be misled by this ad? If the answer is no, the court may dismiss the case. If the answer is yes, the case may be allowed to proceed.

But first the court must establish what it means by a “reasonable consumer.” It does this by asking itself another question, What would a reasonable consumer expect (or not expect) in response to the advertising in question?

This has led to some interesting conclusions about the expectations of reasonable consumers as deemed by the courts, including the following (note: all of these stem from false ad cases that were dismissed):

  1. A reasonable consumer expects there to be ice in iced drinks. (Starbucks)
  2. A reasonable consumer does not expect the overall size of a package to “reflect precisely” the amount of product inside. (Mini Oreos and Mini Chips Ahoy! Go-Paks and countless other “slack-fill” cases)
  3. A reasonable consumer expects “grass-fed” cows eat grains or other food. (Kerrygold butter)
  4. A reasonable consumer does not expect a guarantee on the life of a battery means it won’t leak in storage. (Duracell)
  5. A reasonable consumer expects soy milk and almond milk to be different from dairy milk (Silk and Horizon)
  6. A reasonable consumer does not expect oil olive marketed as “black truffle flavored” to be flavored with actual black truffles. (Trader Joe’s)
  7. A reasonable consumer expects bourbon to be made using machines, even if it’s labeled “handcrafted” or “handmade.” (Jim Bean bourbon and Maker’s Mark whiskey, respectively)
  8. A reasonable consumer does not expect pretzels marketed as “fat free” or “low fat” to be healthy. (Rold Gold pretzels)
  9. A reasonable consumer expects labels on wood to not show the exact dimensions of the lumber. (Menards)
  10. A reasonable consumer does not expect a “Jamaican Style Lager” with “The Taste of Jamaica” to be brewed in Jamaica with Jamaican ingredients. (Red Stripe)

Some have challenged a court or judge’s ability to step into the shoes of a reasonable consumer, citing a knowledge imputation bias that overestimates what others know. Based on one or two of the examples above, we can see their point.

Find more of our coverage on false advertising lawsuits here.

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