it's plausibly deceptive to sell "Kids" gummies identical to adult gummies

Barrales v. New Chapter, Inc., 2025 WL 1584424, No.2:25-cv-01171-HDV-KES (C.D. Cal. Jun. 4, 2025)

Plaintiff alleged that defendant’s Fiber Gummies were deceptivelylabeled (1) because the claim “with 4g of probiotic fiber” was false because itimplies that each gummy contains that amount of fiber, when the serving size is2 gummies; and (2) because the KIDS Organic Fiber Gummies falsely implies thatthe product is specifically formulated or uniquely suitable for kids. Shebrought the usualCalifornia claims (including common-law claims).

Compared to the regular gummies, the front label of the KidsGummies has the word “kids” with each letter a different color, but they havethe exact same chemical composition and consumption method as the FiberGummies.

Defendant argued that the FDCA preempted the claim becauseit expressly allows claims made by serving size. FDCA regulations allow “directstatements about the level (or range) of a nutrient in the food” so long asthey “do not in any way implicitly characterize the level of the nutrient inthe food and are not false or misleading in any respect.” Here, the allegationswere that the nutrient content claims were false or misleading; thus, plaintiffwas seeking only to enforce a requirement identical to federal law and herclaims weren’t preempted.

Defendant argued that “with 4g[rams] prebiotic fiber” wasspecifically allowed because it was based on the “reference amount customarilyconsumed,” i.e., serving size, FDA-defined as the “maximum amount recommended,as appropriate, on the label for consumption per eating occasion.” “But theNinth Circuit differentiates between claims that challenge and seek to alteraccurate statements about serving size and the nutrient content thereof, andclaims that a defendant’s ‘omission of supplemental or clarifying language’misleads consumers.” The plaintiff wasn’t seeking to alter how the serving sizeis calculated, nor how the fiber content of each serving is calculated.

Misleadingness was also plausible; a reasonable consumermight not consult the back label. Believing that each gummy contains four gramsof fiber was “plausibly an unambiguous interpretation of the label based solelyon the language used.”

Likewise, it was plausible for a reasonable consumer to bedeceived by the “KIDS” label into thinking it was especially suitable for kids.Contrary cases involved factual differences, e.g. a medicine whose “infant”version came with a dropper for administration and its otherwise identical “children’s”version had a cup. “Here, there is nothing, pharmacologically or otherwise,that differentiates the Fiber Gummies from the Kids Gummies.”