On July 31, 2023, the Central District of California granted class certification in a false advertising lawsuit against tea-maker R.C. Bigelow, Inc.^[1] The suit alleges that Bigelow’s tea labels, which state “Manufactured in the USA 100%,” either intentionally or negligently misrepresent the origins of the tea because the tea itself is primarily grown internationally, and at least partially processed abroad before being packaged in the U.S.

Certifying the Class

The court found the plaintiffs satisfied all four prerequisites for class certification (numerosity, commonality, typicality, and adequacy).^[2] The court refused to find typicality lacking merely because a consumer purchased the product because of taste or brand loyalty.

For the commonality requirement,^[3] the court examined the “predominance inquiry” in which a court asks whether “questions common to the class predominate” over the individual questions of each plaintiff’s experience.^[4] The court studied how different consumers might experience the claim, considering both the placement of the product on store shelves and the prominence of the claim on the label. The court noted that the same Made in USA label was placed on many different types of teas, and that the claim was set off and much larger than other text on the box, not hidden in a block of text. The court also examined whether consumers would rely on the common meaning of the Made in USA claim, and whether there could be damages from the alleged misrepresentation. The court then held that despite the individual reasons a consumer chose Bigelow teas, the common questions for the class did predominate over the individual questions. The court then defined the common questions as (1) whether reasonable consumers would believe the label to be true, and (2) whether the teas actually were 100% manufactured and processed in the United States.

Admitting and Analyzing Expert Testimony

The Defendants also challenged  certain expert reports. The first report was from a food labeling specialist that discussed how the food industry analyzes “Made in USA” claims, which included an analysis of related federal and state statutes. The defendants sought to exclude this report on the grounds that its analysis was irrelevant to the specific charges of the class action and that the non-lawyer expert had improperly proffered legal opinions. The court dismissed those concerns, stating that the report and testimony discussed relevant statutes.

The second challenged report contained the results of a survey that supported the plaintiffs’ theory of damages — specifically, ­­­that consumers are willing to pay a premium for certain qualities such as a product being made wholly in the U.S., and that plaintiffs were misled into paying this premium. The defendants claimed that the survey lacked specificity and improperly disregarded many other external factors influencing consumer behavior. The court disagreed, finding that such issues went to the weight of the evidence, not the admissibility.

The third challenged report contained the results of a survey that asked consumers what they perceived the “Manufactured in the USA 100%” to mean. According to the report, almost 85% of the consumers surveyed believed “manufactured” to mean the same as “processed,” which matters, according to plaintiffs, because the tea was not 100% processed in the U.S. The defendants sought to strike this report because it did not examine what “processed” meant to the consumers. The court again found that the plain meaning of “processed” was unambiguous and denied the defendant’s motion.

[1] ORDER GRANTING CLASS CERTIFICATION, DENYING MOTIONS TO STRIKE, July 31, 2023, Case No. 20‐cv‐06208 DDP (RAOx) (C.D. Cal)

[2] Fed. R. Civ. P. 23(a).

[3] Fed. R. Civ. P. 23(a)(2).

[4] Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997).