Plaintiff Ayana Hill bought bottles of Fiji water, on the label of which was a green drop—a drop, she claimed, that represented Fiji bottled water was environmentally superior to other waters and endorsed by an environmental organization. Alleging that it was not, Hill filed a proposed class action on behalf of herself and other consumers of Fiji bottled water, naming Roll International Corporation (Roll) and Fiji Water Company LLC (Fiji Water), asserting violations of California's unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.), false advertising law (FAL) (id., § 17500 et seq.), and Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.), plus common law fraud and unjust enrichment.
Hill's complaint alleges that consumers have become increasingly aware of, and sensitive to, the impact of their purchases on the environment, spawning an environmental "movement" that demands products that are "environmentally superior" to like products in their manufacturing, packaging, and distribution processes. The term "green" (oddly capitalized throughout the complaint) is commonly used to describe such products and the movement that demands them. Companies designate their products as green through written representations and visual images—"such as a green raindrop or pictures of the Earth"—and consumers who see such representations on products are led to believe that those products are "environmentally superior" when compared to products that lack such designations.
Companies motivated by increased profits have made deceptive, misleading, and false representations, a practice known as "greenwashing" (again, capitalized) that "has become so rampant" that the Federal Trade Commission (FTC) has issued standards known as "`Green Guides.'"
Hill further alleges that defendants
Hill's pleading includes photographic images. One shows the front label of a bottle that bears a circumscribed green drop; another shows four back labels, each with the green drop symbol adjacent to an indicated Internet Web site, "fijigreen.com"; and a third seems to show a store display featuring two of the green drop symbols, and "Every drop is green" between them. A full page of illustrations provided by Hill (and appended to this opinion) shows the green drop—not circumscribed—next to allegedly "independent" seals designating lack of testing on animals or compliance with unstated environmental standards, plus symbols for recyclable products and Earth Day.
Hill's personal allegations are that, starting in 2008, she bought Fiji water about twice a week from Walgreens stores in San Francisco, relying on representations that the product was "environmentally friendly and superior." She paid a price about 15 percent higher than other bottled water, and would not have bought Fiji water "had she known the truth that the Green Drop was the creation of [defendants], not a neutral party or environmental group, and that Fiji bottled [w]ater was not environmentally friendly or superior to similar bottle[d] water available at cheaper prices."
On review of a demurrer sustained without leave to amend, "[t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Id. at p. 967.)
A court generally confines itself to the pleading but, as appropriate, may extend its consideration to matters subject to judicial notice. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146 [44 Cal.Rptr.2d 441, 900 P.2d 690].) "[W]hen the allegations of the complaint contradict or are inconsistent with such facts, we accept the latter and reject the former. [Citations.]" (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040 [232 Cal.Rptr. 542, 728 P.2d 1177].) We give the same precedence to facts evident from exhibits attached to the pleading. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180 [81 Cal.Rptr.2d 324]; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1626-1627 [272 Cal.Rptr. 623].) Efforts to show reasoning errors are beside the point. "`Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.'" (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300 [58 Cal.Rptr.2d 855, 926 P.2d 1042]; see Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125 [271 Cal.Rptr. 146, 793 P.2d 479].) We do that independently (Smiley v. Citibank, supra, 11 Cal.4th at p. 146), regardless of reasons stated by the trial court. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111 [55 Cal.Rptr.3d 621].)
Our division has stated, in resolving an appeal based on the reasonable-consumer standard following a bench trial, that "[t]he standard to be used in evaluating whether an advertisement is deceptive under the UCL is purely a question of law . . . ." (Lavie v. Procter & Gamble Co. (2003) 105 Cal.App.4th 496, 503 [129 Cal.Rptr.2d 486].) Other courts have stated that whether a business practice is fraudulent, deceptive, or unfair is generally a question of
Broadly stated: The UCL prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the FAL]" (§ 17200); the FAL prohibits advertising "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" (§ 17500); and the CLRA prohibits specified "unfair methods of competition and unfair or deceptive acts or practices" (Civ. Code, § 1770, subd. (a)). While the operative language of each law differs, Hill bases each claimed violation on an act not itself made a cause action. She uses the Environmental Marketing Claims Act (EMCA) (§ 17580 et seq.), section 17580.5, subdivision (a) of which incorporates into the EMCA definition of "`environmental marketing claim' ... any claim contained in the `Guides for the Use of Environmental Marketing Claims' published by the Federal Trade Commission" (see 16 C.F.R. pt. 260 (2011)) (hereafter guides, or FTC guides).
Our state Legislature, by incorporating the FTC guides into the CLRA definition of environmental marketing claims (§ 17580.5, subd. (a)), has
Hill cites this general principle: "General environmental benefit claims. It is deceptive to misrepresent, directly or by implication, that a product, package or service offers a general environmental benefit. Unqualified general claims of environmental benefit are difficult to interpret, and depending on their context, may convey a wide range of meanings to consumers. In many cases, such claims may convey that the product, package or service has specific and far-reaching environmental benefits.... [E]very express and material implied claim that the general assertion conveys to reasonable consumers about an objective quality, feature or attribute of a product or service must be substantiated. Unless this substantiation duty can be met, broad environmental claims should either be avoided or qualified, as necessary, to prevent deception about the specific nature of the environmental benefit being asserted." (16 C.F.R. § 260.7(a) (2011).)
Hill then invokes this example: "Example 5. A product label contains an environmental seal, either in the form of a globe icon, or a globe icon with only the text `Earth Smart' around it. Either label is likely to convey to consumers that the product is environmentally superior to other products. If the manufacturer cannot substantiate this broad claim, the claim would be deceptive. The claims would not be deceptive if they were accompanied by clear and prominent qualifying language limiting the environmental superiority representation to the particular product attribute or attributes for which they could be substantiated, provided that no other deceptive implications were created by the context." (16 C.F.R. § 260.7(a) example 5 (2011).) More specifically, Hill contends that the Fiji green drop is deceptive because it implies, in the circumstances, that an independent third party organization has endorsed Fiji water as environmentally superior, when in fact, the green drop is purely defendants' marketing creation.
And for context, a green drop on the back of every bottle appears right next to the Web site name, "fijigreen.com," further confirming to a reasonable consumer that the green drop symbol is by Fiji water, not an independent third party organization—and, of course, inviting consumers to visit the Web site for product information, which includes Fiji Water's explanation of its environmental efforts. The images in the complaint also belie the allegation that defendants have "called their product FijiGreen." In truth, it is simply a Web site name. Hill raises no allegations whatsoever that any information in the Web site is misleading.
It is difficult from her briefing to discern what Hill means to gain from the "Every drop is green" slogan allegedly used at some point in store displays and other advertising. It is not clear that reasonable consumers would know of the slogan, for it does not appear anywhere on the bottled water, as far as the photographic images reveal. In any event, we do not see how the slogan, even if seen by consumers, alters the overall impression conveyed by the green drop and Web site address.
The Koh Ruling
The discussion in the trial court included a then recent, unpublished ruling by a federal district court in a similar class action suit: Koh v. S.C. Johnson & Son, Inc. (N.D.Cal., Jan. 6, 2010, No. C-09-00927 RMW) 2010 U.S.Dist. Lexis 654 (Koh). Being unpublished, the ruling of course had, and has, no precedential value, but we examine it as we would a hypothetical further example. The suit, brought against S.C. Johnson & Son, Inc., the manufacturer of the multipurpose cleaner Windex and the stain remover Shout, had essentially the same claims raised here, including reliance on the FTC guides,
The suit involved a label with a green background that stated on the front side, "Greenlist™ Ingredients" under a stylized drawing of two leaves and a stem. The back side, readable through the bottle, added: "Greenlist™ is a rating system that promotes the use of environmentally responsible ingredients. For additional information, visit www.scjohnson.com." The district court judge denied the defendant's motion to dismiss, writing that "it is plausible that a reasonable consumer would interpret the Greenlist label as being from a third party." (Koh, supra, 2010 U.S.Dist. Lexis 654 at p. *6.)
Without passing on the correctness of the Koh ruling, we simply point out that the label there was very different from the plain, green drop symbol here. It made express representations of environmental superiority, used the trademarked name "Greenlist," a name not immediately apt to be associated with the product or its manufacturers, and identified the name as a rating system, which further suggested an independent source that rated other manufacturers' products as well.
The Kwikset Ruling
Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310 [120 Cal.Rptr.3d 741, 246 P.3d 877], decided after the briefing in this case was complete and cited by Hill in a letter to this court, is not to the contrary. To begin with, Kwikset is a standing case, holding that persons who can truthfully allege they were deceived by a product's label into spending money to buy the product, and would not have bought it otherwise, have lost money or property within the meaning of the UCL, and thus have standing to sue. It is thus distinguishable procedurally. Also factually.
The deception in Kwikset was the defendants' labeling of its locksets as "Made in U.S.A.," when in fact more than two dozen of the defendants' products "either contained screws or pins made in Taiwan or involved latch subassembly performed in Mexico." (Kwikset, supra, 51 Cal.4th at pp. 317-318.) Ruling for the plaintiffs, the Supreme Court said this, as quoted in Hill's letter: "Simply stated: labels matter. The marketing industry is based on the premise that labels matter, that consumers will choose one product over another similar product based on its label and various tangible and intangible qualities they may come to associate with a particular source. [Citation.] An entire body of law ... exists to protect commercial and consumer interests in accurate label representations as to source, because consumers rely on the accuracy of those representations in making their
We agree wholeheartedly that "labels matter," all labels, including that here. Defendants obviously put the green drop on the label for a purpose, as their counsel had to necessarily concede at oral argument: the green drop was for a "marketing" purpose, to signify "something to do with the environment." Such concession notwithstanding, we hold—and it is all we hold— that no reasonable consumer would be misled to think that the green drop represents a third party organization's endorsement or that Fiji water is environmentally superior to that of the competition.
Common Law Claims
Leave to Amend
Hill asks that, in the event we affirm the order sustaining the demurrer, "the trial court's denial of leave to amend, which was an abuse of discretion, be overruled. Any defects in the [complaint] can be cured by amendment." Hill's saying so does not make it so, however, and it is her burden to show how she might amend to cure the deficiencies. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320 [25 Cal.Rptr.3d 320, 106 P.3d 976].) She has not done this, and so we uphold the denial of leave to amend, as well as the sustaining of the demurrer.
The judgment is affirmed.
Kline, P. J., and Haerle, J., concurred.
"(1) The reasons why the person believes the representation to be true.
"(2) Any significant adverse environmental impacts directly associated with the production, distribution, use, and disposal of the consumer good.
"(3) Any measures that are taken by the person to reduce the environmental impacts directly associated with the production, distribution, and disposal of the consumer good.
"(4) Violations of any federal, state, or local permits directly associated with the production or distribution of the consumer good.
"(5) Whether or not, if applicable, the consumer good conforms with the uniform standards contained in the Federal Trade Commission Guidelines for Environmental Marketing Claims for the use of the terms `recycled,' `recyclable,' `biodegradable,' `photodegradable,' or `ozone friendly.'
"(b) Information and documentation maintained pursuant to this section shall be furnished to any member of the public upon request.
"(c) For the purposes of this section, a wholesaler or retailer who does not initiate a representation by advertising or by placing the representation on a package shall not be deemed to have made the representation.
"(d) It is the intent of the Legislature that the information and documentation supporting the validity of the representation maintained under this section shall be fully disclosed to the public, within the limits of all applicable laws."
Section 17580.5: "(a) It is unlawful for any person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. For the purpose of this section, `environmental marketing claim' shall include any claim contained in the `Guides for the Use of Environmental Marketing Claims' published by the Federal Trade Commission.
"(b) It shall be a defense to any suit or complaint brought under this section that the person's environmental marketing claims conform to the standards or are consistent with the examples contained in the `Guides for the Use of Environmental Marketing Claims' published by the Federal Trade Commission."