Beardsall v. CVS Pharmacy, Inc.

Decision Date24 March 2020
Docket NumberNo. 19-1850,19-1850
Citation953 F.3d 969
Parties Jennifer BEARDSALL, et al., Plaintiffs-Appellants, v. CVS PHARMACY, INC., et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Gregory F. Coleman, Lisa Anne White, Attorneys, Greg Coleman Law PC, Knoxville, TN, Nick Suciu, III, Attorney, Barbat, Mansour & Suciu PLLC, Bloomfield Hills, MI, for Plaintiffs-Appellants Jennifer Beardsall, Amy Connor, Taryn Cornelius, Phyllis Czapski, and Alexandra Groffsky.

Gregory F. Coleman, Attorney, Greg Coleman Law PC, Knoxville, TN, Nick Suciu, III, Attorney, Barbat, Mansour & Suciu PLLC, Bloomfield Hills, MI, for Plaintiff-Appellant Daniel Brown.

Elizabeth M. Chiarello, Rachel Hampton, Caitlin A. Maly, Eric S. Mattson, Attorneys, Sidley Austin LLP, Chicago, IL, for Defendants-Appellees.

Before Bauer, Easterbrook, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiffs brought state consumer deception claims against defendant Fruit of the Earth and its retailer clients. They alleged that defendants’ aloe vera products did not contain any aloe vera and lacked acemannan, a compound that plaintiffs say is responsible for the plant’s therapeutic qualities. But uncontested facts drawn from discovery showed these allegations to be false: the products were made from aloe vera and contained at least some acemannan.

To stave off summary judgment, plaintiffs changed their theory, claiming that the products were degraded and did not contain enough acemannan. Plaintiffs said that it was therefore misleading to call the products aloe vera gel, to represent them as "100% Pure Aloe Vera Gel," and to market them as providing the therapeutic effects associated with aloe vera. Plaintiffs have not, however, presented evidence that some concentration of acemannan is necessary to call a product aloe or to produce a therapeutic effect. Nor have they offered evidence that consumers care at all about acemannan concentration. Whatever theoretical merit these claims might have had on a different record, this record simply does not contain evidence that would allow a reasonable jury to find in favor of plaintiffs. With this dearth of evidence, the district court granted summary judgment in favor of defendants. We affirm.

I. Undisputed Facts and Procedural Background
A. Facts

Defendant Fruit of the Earth, Inc. manufactures aloe vera gel. It both sells the product under its own brand and produces private-label versions for defendants CVS, Walgreens, Walmart, and Target. At issue in this appeal are the Fruit of the Earth and Walgreens products.

The two aloe vera gels are indisputably made from aloe vera plants, though the raw aloe vera harvested by Fruit of the Earth’s suppliers is processed both before and after being delivered to Fruit of the Earth. The suppliers harvest, fillet, and depulp the aloe vera leaves. The resulting aloe is then pasteurized, filtered with active charcoal to remove color and impurities, treated with preservatives, and dehydrated for shipping. Fruit of the Earth then reconstitutes the dehydrated aloe and adds stabilizers, thickeners, and preservatives to make the final gel product shelf-stable. The parties agree that the products are 98% aloe gel (the reconstituted aloe vera solids) and 2% other ingredients (stabilizers and preservatives).

The only relevant difference between the products is the labeling. Both labels describe the respective products as aloe vera gel. Both also indicate that the products can be used to treat dry, irritated, or sunburned skin. The Fruit of the Earth label calls the product "Aloe Vera 100% Gel" and "100% Pure Aloe Vera Gel." An asterisk after "100% Gel" leads to information on the back of the label: "Plus stabilizers and preservatives to insure [sic] potency and efficacy." Each label contains an ingredient list showing that the product contains aloe juice and various other substances. The two labels are reproduced in the attached appendix.1

B. Procedural History

Plaintiffs filed state-law consumer deception claims against Fruit of the Earth, CVS, Walgreens, Walmart, and Target alleging that the labeling of the aloe vera gels—manufactured by Fruit of the Earth and sold under all of the defendants’ brands—was misleading. The district court adopted a bifurcated approach to discovery, allowing fact discovery for the Fruit of the Earth and Walgreens products to proceed and staying litigation over the others. The court then set a deadline for class certification, Daubert motions, and dispositive motions.

After discovery was complete, plaintiffs moved for class certification. Fruit of the Earth and Walgreens moved to exclude the testimony of plaintiffs’ experts and moved for summary judgment. The district court denied defendantsmotion to exclude the testimony of Dr. Edwards, plaintiffs’ expert whose testimony focused on the amount of acemannan in defendants’ products. The court granted summary judgment in favor of Fruit of the Earth and Walgreens, finding no evidence that the aloe gel labels would be likely to deceive a reasonable consumer. Plaintiffsmotion for class certification and defendantsmotion to exclude plaintiffs’ damages expert were denied as moot. The parties then stipulated to the entry of a final judgment in favor of all defendants, and plaintiffs have appealed.

II. Analysis

We review a grant of summary judgment de novo , taking the facts in the light most favorable to the non-moving parties. Suchanek v. Sturm Foods, Inc. , 764 F.3d 750, 761 (7th Cir. 2014). Summary judgment is appropriate "if the movant shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (question on summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury"). Though the movant bears the burden of showing that summary judgment is appropriate, the non-moving party "may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence." Warsco v. Preferred Tech. Grp. , 258 F.3d 557, 563 (7th Cir. 2001) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A. Legal Standard

Plaintiffs have brought claims under fourteen consumer protection statutes spanning twelve different states.2 These statutes all require plaintiffs to prove that the relevant labels are likely to deceive reasonable consumers. See, e.g., Suchanek , 764 F.3d at 756–57 (applying California, Illinois, New Jersey, and New York law, among others); Fink v. Time Warner Cable , 714 F.3d 739, 741 (2d Cir. 2013) (applying California and New York law).

A label is deceptive if it is likely to mislead a reasonable consumer in a material respect, even if it is not literally false. Suchanek , 764 F.3d at 762, citing Williams v. Gerber Prods. Co. , 552 F.3d 934, 938 (9th Cir. 2008), and Kraft, Inc. v. FTC, 970 F.2d 311, 314 (7th Cir. 1992) (applying Federal Trade Commission Act, 15 U.S.C. § 45) ; see also Bober v. Glaxo Wellcome PLC , 246 F.3d 934, 938 (7th Cir. 2001) (applying Illinois law) ("[A] statement is deceptive if it creates a likelihood of deception or has the capacity to deceive."); Ebner v. Fresh, Inc ., 838 F.3d 958, 965 (9th Cir. 2016) (applying California law) ("[T]he reasonable consumer standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.") (internal quotation marks omitted); Zlotnick v. Premier Sales Grp., Inc. , 480 F.3d 1281, 1284 (11th Cir. 2007) (applying Florida Law) ("[D]eception occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment."). This determination of the likelihood of deception "is an impressionistic one more closely akin to a finding of fact than a conclusion of law." Suchanek , 764 F.3d at 762, quoting Kraft , 970 F.2d at 317.

B. Theories of Deception

Plaintiffs present three distinct but closely related theories of deception. First, they say it is misleading for defendants to call the products "aloe vera gel" because they have only low concentrations of acemannan. Second, they say the labels are misleading because the products do not provide the therapeutic effects that one would expect from a product marketed as aloe vera gel. And third, they say the Fruit of the Earth label is particularly misleading by referring to the product as "Aloe Vera 100% Gel" and "100% Pure Aloe Vera Gel." We address each theory in turn.

1. Acemannan Concentration and Aloe Vera Gel

Plaintiffs argue primarily that defendants’ labels are deceptive because the products do not contain enough acemannan to be marketed as "aloe vera gel." Acemannan is a polysaccharide found in aloe vera. No reasonable consumer, plaintiffs argue, would purchase an aloe vera product that contains low concentrations of what plaintiffs maintain is an important therapeutic component.

That might be a viable theory, at least in theory. The problem here is that plaintiffs have not presented any actual evidence that the label is likely to mislead consumers about the nature or quality of the product. Summary judgment is the proverbial " ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events." Johnson v. Cambridge Indus., Inc. , 325 F.3d 892, 901 (7th Cir. 2003). In this case, plaintiffs needed to offer evidence that reasonable consumers were likely to be misled in a material way. Suchanek, 764 F.3d at 762 ; see also Eli Lilly & Co. v. Arla Foods, Inc. , 893 F.3d 375, 382 (7th...

To continue reading

Request your trial
173 cases
  • Bartnett v. Abbott Labs.
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 2, 2020
    ...ask if the statement "creates a likelihood of deception or has the capacity to deceive" a reasonable consumer. Beardsall v. CVS Pharmacy, Inc. , 953 F.3d 969, 973 (7th Cir. 2020) (citing Bober v. Glaxo Wellcome PLC , 246 F.3d 934, 938 (7th Cir. 2001) ). "[T]he allegedly deceptive act must b......
  • Bell v. Publix Super Mkts., Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • December 7, 2020
    ...general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled." Beardsall v. CVS Pharmacy, Inc. , 953 F.3d 969, 972-73 (7th Cir. 2020), quoting Ebner v. Fresh, Inc. , 838 F.3d 958, 965 (9th Cir. 2016) ; Suchanek v. Sturm Foods, Inc ., 764 F.3d 75......
  • Logan v. City of S. Bend
    • United States
    • U.S. District Court — Northern District of Indiana
    • September 29, 2021
    ...party must present the court with evidence on which a reasonable jury could rely to find in his favor. Beardsall v. CVS Pharmacy, Inc. , 953 F.3d 969, 972 (7th Cir. 2020). The court must construe all facts in the light most favorable to the non-moving party, view all reasonable inferences i......
  • Kinman v. Kroger Co.
    • United States
    • U.S. District Court — Northern District of Illinois
    • May 27, 2022
    ...consumers, acting reasonably under the circumstances, could be misled." Bell , 982 F.3d at 474-75 (quoting Beardsall v. CVS Pharmacy, Inc. , 953 F.3d 969, 972-73 (7th Cir. 2020) ). In Bell , the Seventh Circuit was interpreting the consumer-fraud laws of ten states, which laws the Seventh C......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT