Courts are growing increasingly skeptical of class actions challenging the labeling and advertising of food, beverage, and other consumer products. In the past few years, numerous courts have dismissed complaints because a reasonable consumer would not interpret the challenged statement in the way the plaintiff alleges. In an attempt to survive this more robust reasonable-consumer standard, many plaintiffs’ lawyers have begun including consumer survey allegations in their complaints. The legal significance of these allegations—which are often barebones—is a developing question of law with significant implications for practitioners.

An Emerging Tactic: Consumer Surveys at the Pleading Stage

Consumer surveys have long been an important part of consumer fraud class actions, but traditionally they have not been a significant point of contention until the expert discovery stage. At that point, litigants often enlist an expert to design a survey that explores: (1) consumer interpretation, and (2) materiality.