Consumer Fraud – Misrepresentation

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7^th Circuit Court of Appeals

Case Name: Jennifer Beardsall, et al. v. CVS Pharmacy, Inc., et al.

Case No.: 19-1850

Officials: BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Consumer Fraud – Misrepresentation

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.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.