Plaintiffs appeal from a judgment of dismissal following a trial court order sustaining demurrers without leave to amend to their fourth amended complaint. The complaint essentially charges defendants — General Foods Corporation, Safeway Stores, and two advertising agencies — with fraudulent, misleading and deceptive advertising in the marketing of sugared breakfast cereals. The trial court found its allegations insufficient because they fail to state with specificity the advertisements containing the alleged misrepresentations. We review the allegations of the complaint and conclude that the trial court erred in sustaining demurrers without leave to amend to plaintiffs' causes of action charging fraud and violation of laws against unfair competition and deceptive advertising.
I. SUMMARY OF THE PLEADINGS AND PROCEDURE.
Plaintiffs filed their original complaint on June 30, 1977, as a class action on behalf of "California residents who have been misled or deceived, or are threatened with the likelihood of being deceived or misled," by defendants in connection with the marketing of sugared cereals.
The principal defendant is General Foods Corporation, the manufacturer of five "sugared cereals" — Alpha Bits, Honeycomb, Fruity Pebbles, Sugar Crisp, and Cocoa Pebbles — which contain from 38 to 50 percent sugar by weight. The other corporate defendants are two advertising agencies — Benton and Bowles, Inc., and Ogilvy & Mather International, Inc. — which handled advertising of these cereals, and Safeway Stores, which sold the products to plaintiffs. Finally, the complaint includes as defendants numerous officers and employees of the corporate defendants.
When the court sustained a demurrer to the third amended complaint, it ruled that no cause of action could be stated on behalf of the organizational plaintiffs. The individual plaintiffs remaining then filed their fourth amended complaint; the validity of this complaint is the principal issue on appeal.
Paragraph 35 lists some 19 representations allegedly made in television commercials aimed at children. Most of these representations are not explicit but, according to plaintiffs, implicit in the advertising. They include, for example, the implied representation that "children ... who regularly eat candy breakfasts are bigger, stronger, more energetic, happier, more invulnerable, and braver ...," that eating such products is a "`fun' thing ... to do," that the products possess or impart "magical powers," etc. Some representations, however, are more specific: that the sugared cereals are "grain products," are "healthful and nutritious," contain adequate amounts of elements essential to diet, and "are the most important part of a well balanced breakfast."
Paragraph 42 asserts that defendants concealed material facts, such as the sugar content of their products, that "[t]here is no honey in Honeycomb, no fruit in Fruity Pebbles," that sugared cereals contribute to tooth decay and can have more serious medical consequences, and that they cost more per serving than breakfast foods of greater nutritional value.
The complaint asserts at length the special susceptibility of children to defendants' "advertising scheme," and explains how defendants take advantage of this vulnerability. It further asserts that, as defendants know, the desires and beliefs of children influence and often determine the decision of adults to buy certain breakfast foods. Finally, claiming that defendants will continue deceptive practices unless enjoined, the first cause of action seeks injunctive relief, plus restitution of monies paid by plaintiff class for "candy breakfasts."
Plaintiffs' second cause of action is based on Business and Professions Code section 17500-17572, which prohibits false or misleading advertising. Since false or misleading advertising is a form of unfair competition (Bus. & Prof. Code, § 17200), plaintiffs' second cause of action incorporates by reference the paragraphs charging unfair competition in the first cause of action.
The third through sixth causes of action set out various aspects of the tort of fraud. The third cause of action charges deliberate fraud in violation of Civil Code section 1710, subdivision 1. Incorporating the allegations of the first cause of action, it adds allegations of plaintiffs' reasonable reliance upon defendants' representations, especially in light of defendants' claim to superior knowledge about the nutritional value of foods. The fourth cause of action adds allegations of negligent misrepresentation (Civ. Code, § 1710, subd. 2); the fifth cause of action adds fraudulent concealment (Civ. Code, § 1710, subd. 3). The sixth cause of action is based on common law fraud. Each of these causes of action asserts proximate causation, and claims compensatory damages of $10 million; those counts asserting intentional misrepresentation include a prayer for punitive damages.
Defendants demurred to the fourth amended complaint for failure to state a cause of action and for uncertainty.
Appealing from the judgment of dismissal, plaintiffs contend that their fourth amended complaint states, or can be amended to state, a valid cause of action. They also ask us to review certain rulings by the trial court respecting earlier versions of their complaint. They point out that in sustaining a demurrer to their second amended complaint, the court denied leave to amend as to causes of action asserting breach of fiduciary duty and violation of the Sherman Food, Drug and Cosmetic Law (Health & Saf, Code, § 26000 et seq.). In addition, when considering plaintiffs' third cause
In reviewing the issues raised by the fourth amended complaint and the earlier rulings of the trial court, we first consider the causes of action based upon various consumer protection statutes. We then review the various causes of action for statutory and common law fraud. Lastly, we take up plaintiffs' asserted cause of action for breach of fiduciary duty. Issues concerning the standing of plaintiffs and the available remedies will be discussed in connection with each cause of action.
II. CAUSES OF ACTION BASED ON CONSUMER PROTECTION STATUTES.
Plaintiffs' first cause of action in the fourth amended complaint seeks injunctive relief and restitution under Business and Professions Code section 17200 and subsequent sections (the unfair competition law). The operative language appears in section 17203: "Any person performing or proposing to perform an act of unfair competition within this state may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments ... as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition ... or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition."
The term "unfair competition" receives a broad definition. A recent Court of Appeal decision summarized its breadth. "Historically, the tort of unfair business competition required a competitive injury. However, the language of section 17200 ... `demonstrates a clear design to protect consumers as well as competitors by its final clause, permitting inter alia, any member of the public to sue on his own behalf or on behalf of the public generally.' (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 110 [101 Cal.Rptr. 745, 496 P.2d 817].)
Plaintiffs' second cause of action is based on Business and Professions Code section 17500 and subsequent sections (the false advertising law), which prohibits the dissemination in any advertising media of any "statement" concerning real or personal property offered for sale, "which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading." Bus. & Prof. Code, § 17500.) Section 17535 authorizes injunctive relief and restitution. (See Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442, 450 [153 Cal.Rptr. 28, 591 P.2d 51].) Any violation of the false advertising law, moreover, necessarily violates the unfair competition law.
In addition to the causes of action asserted in the fourth amended complaint, plaintiffs' second amended complaint also asserted a cause of action based on the Sherman Food, Drug and Cosmetic Law (Health & Saf. Code, § 26000 et seq.). Section 26460 provides that "[i]t is unlawful for any person to disseminate any false advertising of any food, drug, device, or cosmetic. An advertisement is false if it is false or misleading in any particular." Unlike the Business and Professions Code provisions cited earlier, this act does not expressly provide for private enforcement.
In sum, plaintiffs rely on three statutes — the unfair competition law, the false advertising law, and the Sherman Food, Drug and Cosmetic Law — all of which in similar language prohibit false, unfair, misleading, or deceptive advertising. In the present context we discern no difference in the scope of these enactments (apart from the fact that the Sherman law is limited to food, drugs, and cosmetics) or the meaning of their provisions. We proceed, therefore, on the basis that any advertising scheme involving false, unfair, misleading or deceptive advertising of food products equally violates all three statutes.
Insofar as plaintiffs seek injunctive relief and restitution under the cited consumer protection statutes, defendants' principal basis for demurrer is the charge that the complaint fails to describe the alleged deceptive practices with sufficient particularity. Defendants assert that plaintiffs should not merely describe the substance of the misrepresentations, but should state the specific deceptive language employed, identify the persons making the misrepresentations and those to whom they were made, and indicate the date, time and place of the deception.
We applied these principles in our decision in the Jayhill case (People v. Superior Court (Jayhill Corp.) (1973) 9 Cal.3d 283 [107 Cal.Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191]), a suit charging encyclopedia salesmen with false and misleading advertising in violation of Business and Professions Code section 17500 et seq. Our opinion explained that "[t]he complaint alleges that defendants, `have ... engaged in a scheme to mislead customers by a series of misrepresentations.' It is then charged that certain specific misrepresentations were made to `customers solicited' by a particular defendant. Attached as exhibits to the complaint are the sales dialogues allegedly employed by some of the defendants, containing the representations in question. The clear implication of these allegations is that each defendant made the misrepresentation attributed to him to each customer solicited. [¶] Defendants argue that the allegations are insufficient because they do not state the names of the customers allegedly solicited, the names of the salesmen making the misrepresentations, and the time and place of the misrepresentations. In our view, these evidentiary facts need not be pleaded, and the acts relied upon by the Attorney General as constituting the violations are alleged in sufficient detail to apprise defendants of the basis of the cause of action. If defendants require further specifics in order to prepare their defense, such matters may be the subject of discovery proceedings." (Pp. 287-288.)
Defendants suggest that Jayhill held only that the failure to plead the exact language of the misrepresentation in text is cured by including that language in an exhibit to the complaint. The Jayhill exhibits, however, included only "the sales dialogues allegedly employed by some of the defendants" (p. 288, italics added), yet our decision upheld the cause of action against all defendants.
Defendants' objection, as we see it, is not really one of lack of specificity or notice. Basically defendants believe that the allegations of paragraph 35 are not a fair paraphrase of the actual language of the advertisements, and that if plaintiffs could be compelled to state the exact language, it would be clear, for example, that defendants are not really representing that Cocoa Puffs will make children braver or that Alpha Bits impart magical powers.
Important policy considerations also argue against requiring plaintiffs to set out the specific language of each advertisement. Plaintiffs allege that defendants carried out a large scale program of deceptive advertising in which the specific advertisements change constantly, but all follow a pattern of making, in one form or another, certain misleading and deceptive representations. If such is the case, to require plaintiffs to plead the specifics of each advertisement would render a suit challenging the overall program impractical. The complaint would have to include thousands of pages setting out specifics which are largely within defendants' knowledge. The cost and difficulty of compiling, organizing, and setting down the information would seriously deter the filing of any such complaint. The effect of such a pleading requirement, moreover, would not be limited to discouraging private suits; it would also seriously hamper suits by public officials seeking to enjoin schemes of unfair competition and deceptive advertising.
We do not, however, decide whether a plaintiff other than a business competitor can recover damages on a cause of action based on the unfair competition or false advertising law.
III. CAUSES OF ACTION BASED ON FRAUD.
Plaintiffs base their third, fourth, fifth and sixth causes of action on the tort of fraud. Civil Code section 1710 defines that tort: "A deceit [fraud] ... is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact...." Plaintiffs' third cause of action accordingly charges intentional misrepresentation (citing subd. 1); the fourth cause
Additionally, in a case such as the present one, considerations of practicality enter in. A complaint should be kept to reasonable length, and plaintiffs' fourth amended complaint, 64 pages long, strains at that limit. Yet plaintiffs allege thousands of misrepresentations in various media over a span of four years — representations which, while similar in substance, differ in time, place, and detail of language and presentation. A complaint which set out each advertisement verbatim, and specified the time, place, and medium, might seem to represent perfect compliance with the specificity requirement, but as a practical matter, it would provide less effective notice and be less useful in framing the issues than would a shorter, more generalized version.
General Foods also knows the content of each questioned advertisement. Plaintiffs initially lacked such detailed knowledge, and although they have now obtained copies of the television storyboards through discovery, quotation or attachment of such copies to the complaint would consume thousands of pages. Attachment of the storyboards, moreover, would not redress defendants' grievance, which is, as we understand it, not that they lacked knowledge of the content of the commercials but that they do not understand what it is in the images and words that gives rise to the alleged misrepresentations.
For plaintiffs to provide an explanation for every advertisement would be obviously impractical. We believe, however, that the trial court could reasonably require plaintiffs to set out or attach a representative selection of advertisements, to state the misrepresentations made by those advertisements, and to indicate the language or images upon which any implied misrepresentations are based. This is a method of pleading which has been endorsed in other cases involving numerous misrepresentations (see People v. Superior Court (Jayhill Corp.), supra, 9 Cal.3d 283, 288; Vogelsang v. Wolpert (1964) 227 Cal.App.2d 102, 116 [38 Cal.Rptr. 440].) It represents a reasonable accommodation between defendants' right to a pleading sufficiently specific "that the court can ascertain for itself if the representations ... were in fact material, and of an actionable nature" (8 Grossman & Van Alstyne, op. cit. supra, § 984 (fns. omitted)), and the importance of avoiding pleading requirements so burdensome as to preclude relief in cases involving multiple misrepresentations.
A specific statement of the advertisements seen and relied upon by the individual plaintiffs would serve to demonstrate both that they possess a
Restatement Second of Torts section 533, states that "[t]he maker of a fraudulent misrepresentation is subject to liability ... to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct." This proposition was indorsed as California law in Varwig v. Anderson-Behel Porsche/Audi, Inc. (1977) 74 Cal.App.3d 578, 581 [141 Cal.Rptr. 539]. We recognize that it does not quite cover the present case — plaintiffs do not allege the children repeated the representations to their parents, and we would imagine that in most cases they did not, but simply expressed their desire for the product. Repetition, however, should not be a prerequisite to liability; it should be sufficient that defendant makes a misrepresentation to one group intending to influence the behavior of the ultimate purchaser, and that he succeeds in this plan.
We turn finally to the question of damages.
The present complaint describes three distinct groups of plaintiffs: the organizational plaintiffs, the parents who purchased the cereals, and the children who consumed them.
In summary, the complaint fails to state a cause of action in fraud on behalf of the organizational plaintiffs. Its allegations on behalf of the individual
IV. CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY.
Plaintiffs' assertion of fiduciary duty in a consumer context is unique. Plaintiffs argue that imposition of fiduciary obligations is appropriate whenever one party with a stronger bargaining position or greater knowledge has the ability to reach out and exploit the weaker party.
But the efforts of commercial sellers — even those with superior bargaining power — to profit from the trust of consumers is not enough to create a fiduciary duty. If it were, the law of fiduciary relations would largely displace both the tort of fraud and much of the Commercial Code. Something more is needed. It is difficult to define that additional element precisely, and courts have traditionally refrained from definitions that would place strict limits on this equitable concept.
Although the parties argue primarily the sufficiency and specificity of the pleadings, the underlying controversy is of much greater dimension. Defendants engaged in a nationwide, long-term advertising campaign designed to persuade children to influence their parents to buy sugared cereals. Adapted to its audience, the campaign sought to persuade less by direct representation than by imagery and example. While maintaining a constant theme, the particular advertisements changed frequently. Plaintiffs now contend that these advertisements were deceptive and misleading, and while we do not know the actual truth of those charges, we must assume them true for the purpose of this appeal. Yet, if we apply strict requirements of specificity in pleading as defendants argue, the result would be to eliminate the private lawsuit as a practical remedy to redress such past deception or prevent further deception. By directing their advertisements to children, and changing them frequently, defendants would have obtained practical immunity
It can be argued that administrative investigation and rule making would be a better method of regulating advertising of this scope and character. The California Legislature, however, has not established the necessary administrative structure. It has enacted consumer protection statutes and codified common law remedies which in principle apply to all deceptive advertising, regardless of complexity and scale, and, we believe, regardless of whether the advertisement seeks to influence the consumer directly or through his children. Established rules of pleading should not be applied so inflexibly that they bar use of such remedies.
We therefore conclude that plaintiffs' complaint states a cause of action for injunctive relief and restitution under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) and the false advertising law (Bus. & Prof. Code, § 17500 et seq.). Plaintiffs should be permitted to amend their complaint on behalf of the parent and child plaintiffs under the causes of action for fraud. We uphold the sustaining of a demurrer without leave to amend to bar the cause of action for breach of fiduciary duty, and the organizational plaintiffs' claim for damages.
The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.
Mosk, J., Richardson, J., Kaus, J., Reynoso, J., and Grodin, J., concurred.
I concur in Justice Broussard's opinion but I would answer the question as to whether plaintiffs who are not business competitors can recover damages for harm suffered as a result of unfair competition (Bus. & Prof. Code, § 17200
The majority suggest that this court need not decide whether damages are available under the unfair competition and false advertising laws because all of the injured plaintiffs may recover damages under their causes of action
Under the traditional view of fraud, a plaintiff must show that the defendant made an untrue assertion of fact, which the defendant either knew to be untrue or had no reasonable ground for believing to be true. (Civ. Code, § 1710, subds. 1 and 2; Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 422 [159 P.2d 958]; see also Nathanson v. Murphy (1955) 132 Cal.App.2d 363, 367 [282 P.2d 174].)
By contrast, any statement that is "untrue or misleading," and which the defendant knew or reasonably should have known to be "untrue or misleading," falls within the definition of "false or misleading statements" proscribed by the false advertising law. (§ 17500 [former Pen. Code, § 654a], italics added; People v. Wahl (1940) 39 Cal.App.2d Supp. 771, 773 [100 P.2d 550]; Audio Fidelity, Inc. v. High Fidelity Recordings, Inc. (9th Cir.1960) 283 F.2d 551, 555.) And, whether the defendant has engaged in unfair competition in violation of section 17200 (formerly Civ. Code, § 3369, subd. 3) depends upon "whether the public is likely to be deceived. ..." (Payne v. United California Bank (1972) 23 Cal.App.3d 850, 856 [100 Cal.Rptr. 672], italics added, citing People ex rel. Mosk v. National Research Co. of Cal. (1962) 201 Cal.App.2d 765, 772 [20 Cal.Rptr. 516]; see also West v. Lind (1960) 186 Cal.App.2d 563, 567 [9 Cal.Rptr. 288]; Family Record Plan, Inc. v. Mitchell (1959) 172 Cal.App.2d 235, 245 [342 Cal.Rptr. 10].) Thus, under the unfair competition and false advertising causes of action, a plaintiff need not prove either: (1) that an assertion of fact was made, or (2) that the assertion was untrue.
It appears, then, that under the traditional view of fraud, plaintiffs must sustain a greater burden to prove fraud than to prove unfair competition or false advertising. Recent developments do suggest, however, that the lines between fact and opinion, and between "untrue" and "misleading" statements, may be more apparent than real, at least in the consumer protection area. In Hauter v. Zogarts (1975) 14 Cal.3d 104 [120 Cal.Rptr. 681, 534 P.2d 377, 74 A.L.R.3d 1282], for example, a manufacturer claimed that its "Golfing Gizmo" was "completely safe," and that the ball attached to the device "will not hit [the] player." (Id., at pp. 108, 109.) This claim was
Apparently, the majority assume that similarly expansive definitions of "untrue" and "fact" should be applied here. I have no disagreement with that approach. However, in the absence of a clear statement equating the fraud standard (as applied in the consumer protection area) with that of the unfair competition and false advertising laws, this court should decide whether the injured plaintiffs may recover damages under the latter provisions.
I would hold that injured consumers may state a cause of action for damages under the unfair competition and false advertising laws. The legislative history, purpose, and judicial treatment of the unfair competition law establish that courts may remedy a violation by awarding compensatory damages to all injured parties. Since a violation of the false advertising law is also, by definition, a violation of the unfair competition law (§ 17200
The unfair competition law codified a longstanding tort doctrine which provided businesses with a remedy for unfair practices committed by their competitors. (See Note, Prevention of Unfair Business Practices in California: A Proposal for Effective Regulation (1980) 32 Hastings L.J. 229, 236-237.) As originally enacted, the law expressly provided for injunctive relief, but was silent on damages. (Stats. 1933, ch. 953, § 1, p. 2482.
In 1976, the Legislature amended the unfair competition law to provide for restitution as well as injunctive relief. (Stats. 1976, ch. 1005, § 1, pp. 2378-2379.) The law, now codified as section 17200 et seq., remains silent as to compensatory damages. The question then becomes whether compensatory damages, long awarded to business competitors, may be awarded to consumers as well.
The unfair competition law provides absolutely no basis for preferring business competitors over consumers in determining which remedies are available. In Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 111 [101 Cal.Rptr. 745, 496 P.2d 817], an action by consumers for injunctive relief, this court held that the unfair competition law protects consumers as well as business competitors. Indeed, "in a society which enlists a variety of psychological and advertising stimulants to induce the consumption of goods, consumers, rather than competitors, need the greatest protection from sharp business practices." (Ibid.)
Defendants argue that because the statute is silent on compensatory damages, the sole basis for holding that compensatory damages are available to anyone lies in the old equitable doctrine, which was available only to competitors. This proposition has already been rejected by this court.
In People v. Superior Court (Jayhill Corp.) (1973) 9 Cal.3d 283 [107 Cal.Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191], the Attorney General sought restitution on behalf of consumers who had been solicited by means of fraudulent sales presentations. At the time the Jayhill action was filed, the Legislature had not yet amended the statute to provide for restitution. Nevertheless, this court held that courts could use their "general equity jurisdiction" to grant restitution to injured customers. (Id., at p. 286.) "Unless the Legislature — `in so many words, or by a necessary and inescapable inference'" — imposes a restriction on a court's equity powers, a court
The precise issue presented here was addressed by the Court of Appeal in United Farm Workers of America v. Superior Court (1975) 47 Cal.App.3d 334 [120 Cal.Rptr. 904]. Reasoning that Jayhill had implied that damages could be awarded in an appropriate case, the court concluded that a noncompetitor could recover damages under the unfair competition and false advertising laws. (Id., at pp. 344-345.)
Defendants urge this court to overrule United Farm Workers and to repudiate the principles announced in Jayhill. To support their position, they point to Chern v. Bank of America (1976) 15 Cal.3d 866 [127 Cal.Rptr. 110, 544 P.2d 1310].
In Chern, this court stated without explanation that damages are not recoverable under the false advertising law. (15 Cal.3d at p. 875.) Since the issue of damages for unfair competition was not raised by the parties, this court did not address United Farm Workers, Jayhill, or the numerous cases holding that damages are available to competitors for unfair competition. (See ante, p. 225.)
In my view, Chern should be overruled. Otherwise, this court would be forced to adopt one of two alternatives, neither of which is supported by law or logic. As one alternative, the court could conclude that competitors but not consumers may recover general damages. This approach would require the overruling of United Farm Workers and the repudiation of the sound principles announced in Jayhill. Moreover, to accord competitors but not consumers a damage remedy would directly conflict with this court's recognition that "consumers, rather than competitors, need the greatest protection from sharp business practices." (Barquis v. Merchants Collection Assn., supra, 7 Cal.3d 94, 111.)
As a second alternative, it could be held that no plaintiff may recover general damages for unfair competition or false advertising. This approach
In short, to retain Chern, which is unsupported by precedent or reasoning, this court would have to overturn numerous other decisions which are grounded in traditional principles of equity and which are consistent with the purposes of the unfair competition and false advertising laws. (See generally, Note, supra, 32 Hastings L.J. at pp. 241-242.) Accordingly, I would overrule Chern and hold that noncompetitor plaintiffs may state a cause of action for damages under both the unfair competition and false advertising laws.
"35. The advertising scheme routinely and repeatedly employs and utilizes, in commercials aimed at children, each of the following representations which are conveyed both visually and verbally:
"(a) Children and young children who regularly eat candy breakfasts are bigger, stronger, more energetic, happier, more invulnerable, and braver than they would have been if they did not eat candy breakfasts.
"(b) Eating candy breakfasts is a `fun' thing for children to do, and is invariably equated with entertainment and adventure.
"(c) The sweet taste of a product ensures or correlates with nutritional merit.
"(d) Eating candy breakfasts will make children happy.
"(e) Bright colors in foods ensure or correlate with nutritional merit.
"(f) Candy breakfasts are grain products.
"(g) Candy breakfasts are more healthful and nutritious for a child than most other kinds and types of cereals.
"(h) Adding small amounts of vitamins and minerals to a product automatically makes it `nutritious.'
"(i) Candy breakfasts inherently possess and/or impart to those ingesting them magical powers, such as the capacity to cause apes and fantastic creatures to appear or disappear.
"(j) Candy breakfasts contain adequate amounts of the essential elements of a growing child's diet, including protein.
"(k) The `premiums' (small toys packaged in with the candy breakfast as an inducement to the child) are very valuable and are offered free as a prize in each box of candy breakfast.
"(l) Candy breakfasts are the most important part of a `well-balanced breakfast' and are at least as nutritious as milk, toast and juice.
"(m) Candy breakfasts calm a child's fears and dispel a child's anxiety....
"(n) Candy breakfasts have visual characteristics which they do not in fact possess, such as vivid colors and the capacity to glitter or to enlarge from their actual size to a larger size.
"In addition to the foregoing representations specified in Paragraph 35 (a) through (n), in each of the commercials for each of the products specified below the advertising scheme repeatedly, uniformly and consistently utilizes and relies upon the following representations with respect to particular products:
"(o) Cocoa Pebbles are good for a child to eat whenever he or she is hungry, and it is a sound nutritional practice to eat chocolatey tasting foods, such as Cocoa Pebbles, for breakfast.
"(p) Honeycomb (i) contains honey and (ii) consists of pieces which are each at least two (2) inches in diameter and (iii) will make a child big and strong.
"(q) Alpha-Bits (i) will enable a child to conquer his or her enemies, (ii) can be used by a child easily to spell words in his or her spoon, (iii) are an effective cure for the child's anxieties, and (iv) have magical powers and can impart magical powers to a child....
"(r) Fruity Pebbles (i) contain fruit and (ii) emit auras, rainbows or mesmerizing colors.
"(s) Super Sugar Crisp (i) should be eaten as a snack food without danger to dental health, (ii) should be eaten as a nutritious snack whenever a child is hungry, (iii) makes a child smart and (iv) is coated with golden sugar and such sugar is very valuable."
"42. In the advertising scheme planned and participated in by each and every Defendant, none of the following facts are ever disclosed:
"(a) The percentage of sugar and chemicals together in the products advertised ranges from 38% to 50% of the total weight of the product;
"(b) There is no honey in Honeycomb, no fruit in Fruity Pebbles, and the premiums packed into the boxes of Alpha Bits and Super Sugar Crisp cost no more than a few pennies at most;
"(c) Eating candy breakfasts may contribute to tooth decay in children and adults;
"(d) Eating candy breakfasts as a snack will cause tooth decay;
"(e) Children should brush their teeth soon after eating sugary foods;
"(f) For many children, excessive sugar consumption will have serious and detrimental health consequences, including obesity, heart disease, and other adverse health consequences;
"(g) For children with already existing health problems, especially diabetes, consuming candy breakfasts may have serious and detrimental health consequences;
"(h) There is a serious controversy over the adverse effects of sugar on the health of children;
"(i) Candy breakfasts are not the most important part of a balanced breakfast;
"(j) If eaten at all, candy breakfasts should not be consumed in large quantities and whenever a child is hungry;
"(k) Candy breakfasts cost more per serving than non-pre-sweetened breakfast cereals or hot cereals and more than other foods of better nutritional value than candy breakfasts;
"(l) A child's welfare is best served by accepting nutritional advice from his or her parents when such advice conflicts with advice given in television commercials;
"(m) The happy, adventure-filled fantasy portrayal of eating candy breakfasts is unrealistic and cannot be duplicated by any child."
We do not believe plaintiffs' claim under section 26461.5 states a different basis for relief than do their claims under section 26460 of the Sherman law or the cited sections of the Business and Professions Code. In each case the claim does not rest on the sugar content of the product alone, but upon the advertising program which, it is alleged, conceals the sugar content and markets the product as a "cereal" instead of a "candy breakfast."