Attorney General Bonta Files Brief in Defense of State Laws Protecting Consumers from False and Misleading Advertising

Thursday, March 31, 2022
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OAKLAND – Attorney General Bonta filed an amicus brief in the Ninth Circuit Court of Appeals in defense of state laws protecting consumers from false and misleading advertising. In Moreno v. Vi-Jon, Anthony Moreno filed a class action alleging that he purchased four hand sanitizer products manufactured by Vi-Jon based on deceptive advertising. The front label of the sanitizers at issue contain the claim that the products “kill 99.99% of germs,” despite the products being ineffective against many common, harmful viruses and bacteria. In the brief in support of Moreno, Attorney General Bonta argues that the district court erred in dismissing his claims and failed to consider how a reasonable consumer behaves.

“Every day, we make dozens of decisions, usually based on limited information and shortcuts,” said Attorney General Bonta. “The average consumer does not have the time or background to carefully consider each of the many purchases they make. Marketers know this and design their advertising accordingly. As Californians go about their busy lives, they should be able to trust that companies are not selling their products through lies and deception. I urge the Ninth Circuit to reverse the district court’s decision and allow this case to move forward.”

Moreno v. Vi-Jon centers around false advertising relating to claims made on the front and back labels of Vi-Jon’s hand sanitizer products. In his complaint, Moreno claims that he would not have purchased Vi-Jon’s products if he had known that they were not as effective as represented on their labels. California’s Unfair Competition Law and False Advertising Law prohibit advertising that is false, as well as statements that, although true, are “either actually misleading or [have] a capacity, likelihood or tendency to deceive or confuse the public.” 

According to one behavioral science study, “the average package only has one tenth of a second to make an impression on the shopper.” In a world constrained by time, money, and the demands of the family, reasonable consumers prioritize easily accessible information right in front of them over additional or contradictory information. Despite this, the district court granted Vi-Jon’s motion to dismiss the case, finding both that Moreno should have known that Vi-Jon’s claims were untrue, and that Moreno lacked standing to even pursue the litigation.

In the brief, Attorney General Bonta argues the district court erred in dismissing Moreno’s case because:

  • Economic injury from purchasing a deceptively advertised product is sufficient to establish standing;
  • Deceptive advertising claims generally present questions of fact that are not appropriate for dismissal in the initial stages of litigation, except in rare circumstances not present here;
  • A disclaimer on the back label of a product does not excuse misleading claims made on the front label; and
  • Courts must consider how reasonable consumers actually behave in the real-world context in which they make everyday purchasing decisions.

A copy of the amicus brief is available here.

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