A recent case arising out of the Northern District of California
provides a notable contrast between class actions in the United
States and those in Canada when it comes to the burden of proof for
In Khasin v. The Hershey Co., Case No.
5:12-CV-01862-EJD, the Hershey Company (“Hersey”) was
granted partial summary judgment in a putative class action. The
plaintiff had alleged that Hershey’s representations
concerning some of its products were unlawful and misleading, so as
to amount to disbranding and deception. More specifically, the
plaintiff alleged certain representations concerning antioxidants,
nutrients, sugar and portion serving size on Hershey's
advertisements, packaging and online website. The plaintiff alleged
that he had relied on the Hershey website when he purchased its
Hershey sought summary judgment on the plaintiff’s
misrepresentation claims, arguing that the plaintiff did not
actually rely on such representations. The plaintiff argued that he
need not prove actual reliance under California’s Unfair
Competition Law, but also that summary judgment cannot be decided
before ruling on class certification.
The court noted that because Hershey was seeking summary
judgment, it was choosing to waive the potential protection
afforded by an early resolution on class certification. The court
found that no prejudice would result to class members or to the
plaintiff from a pre-certification summary judgment; putative class
members would remain able to sue Hershey.
The court granted partial summary judgment in favour of Hershey,
as the plaintiff testified he had not even viewed Hershey’s
website and off-label advertising and that he did not rely on a
majority of Hershey’s labels. The plaintiff further testified
that he did not purchase any of Hershey’s products as a
result of relying on deceptive advertising, except for those
representations regarding antioxidants.
Contrast With Canada
This case provides an interesting contrast to class actions in
Canada, specifically the standard of the burden of proof for class
representatives in Canada. While the Northern District of
California focused on whether the plaintiff had actually seen the
majority of the alleged misrepresentations and had, in fact, relied
on such misrepresentations, Canadian courts are less concerned with
the connection between the plaintiff representative and the
defendant’s alleged wrongdoing. Canadian courts take a more
relaxed approach than those courts south of the border when
assessing whether a plaintiff representative has satisfied the
burden of proof. Often times, the plaintiff representative
has not even been directly wronged by the acts as alleged against
Currently, given that regulators and consumers scrutinize the
accuracy of product labelling more than ever, and given that courts
seem to be less concerned with whether a plaintiff representative
has, in fact, been wronged by such acts, there appears to be
no shortage of consumers willing to take food, beverage and
care product manufacturers to task over product labels.
Accordingly, Canadian manufacturers ought to be mindful to
implement strategies that can mitigate risk against such claims.
Some tips for best practices include the following:
Know the law in terms of labelling requirements, and what
regulations and guidelines apply to your product;
Use marketing research and surveys to establish how the average
consumer might interpret your label; and
Keep on top of current research, studies and any recent
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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