NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH VITORT, a consumer residing in 

Oregon, individually and on behalf of all 

others situated, 

Plaintiff-Appellant, 

 v. 

KROGER COMPANY; et al., 

Defendants-Appellees.

No. 22-35185 

D.C. No. 3:20-cv-01317-AC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, Chief District Judge, Presiding

Submitted April 21, 2023**

Portland, Oregon

Before: RAWLINSON, BEA, and SUNG, Circuit Judges.

Plaintiff-Appellant Sarah Vitort appeals from the district court’s dismissal of 

her putative class action complaint against Defendants-Appellees The Kroger 

Company and Fred Meyer Stores, Inc. (together, “Kroger”). She alleged that 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 28 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Kroger violated multiple provisions of the Oregon Unlawful Trade Practices Act, 

Or. Rev. Stat. §§ 646.605, et seq. (“OUTPA”), and breached the implied warranty 

of merchantability when it falsely or misleadingly labeled a spreadable fruit 

product containing fruit-based sweeteners as “Just Fruit.” 1 We review the district 

court’s dismissal de novo. See Biltmore Assocs., LLC v. Twin City Fire Ins. Co., 

572 F.3d 663, 668 (9th Cir. 2009). For the reasons stated below, we affirm.

1. We agree with the district court’s conclusion that Kroger’s “Just Fruit” 

label is not objectively false. To establish an OUTPA violation, a plaintiff must 

show that “(1) the defendant committed an unlawful trade practice; (2) plaintiff 

suffered an ascertainable loss of money or property; and (3) plaintiff's injury 

(ascertainable loss) was the result of the unlawful trade practice.” Pearson v. 

Phillip Morris, Inc., 361 P.3d 3, 28 (Or. 2015). In turn, a defendant commits an 

unlawful trade practice when they label a product in a way that is objectively false 

with regards to the source, characteristics, or quality of the product. See Or. Rev. 

Stat. §§ 646.608(1)(b), (e), (g), (i), and (t). 

We consider the definition of “fruit” in the context of spreadable fruit 

products. Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225, 1229 (9th Cir. 

1 Vitort relies on the same arguments and allegations to support both her claim for 

breach of the implied warranty of merchantability and her five OUTPA claims. 

The district court correctly held that the claims rise or fall together. Accordingly, 

we do not separately analyze Vitort’s breach of implied warranty claim.
3 

2019) (considering the definition of “diet” in the context of soft drinks). Vitort 

concedes that the additional ingredients in Kroger’s “Just Fruit” product—fruit 

syrup, pectin, calcium citrate, apple juice concentrate, and citric acid—are each

extracted and isolated from actual fruit. However, she argues that these ingredients 

are not “fruit” because they appear in a form that does not exist in nature. But 

spreadable fruit products, which also do not exist in nature, necessarily contain 

ingredients other than the crushed “reproductive bod[ies] of a seed plant.” Fruit, 

Merriam Webster Dictionary, available at https://www.merriamwebster.com/dictionary/fruit (last accessed April 19, 2023). While many 

spreadable fruit products contain non-fruit ingredients, such as flavor extracts, nonfruit sugar, food coloring, or animal gelatin, each ingredient in Kroger’s “Just 

Fruit” product derives from fruit. Accordingly, its label is not objectively false.

2. We further agree with the district court’s conclusion that Kroger’s “Just 

Fruit” label is not likely to mislead a reasonable consumer. It is also an unlawful 

trade practice to label a product in a way that, even if objectively true, is 

misleading. See Or. Rev. Stat. §§ 646.608(1)(b), (e), (g), (i), and (t). The parties 

agree that whether Kroger’s label is misleading is governed by the reasonable 

consumer test, under which Vitort must show that the label creates “a probability 

that a significant portion of the general consuming public or of targeted consumers, 
4 

acting reasonably in the circumstances, could be misled.” Becerra, 945 at 1229.2

We conclude that Kroger’s “Just Fruit” label is not likely to mislead a 

significant portion of reasonable grocery shoppers. Vitort argues that the descriptor 

“Just” distinguishes Kroger’s “Just Fruit” product from other spreadable fruit 

products by connoting the absence of added sweeteners; Vitort therefore contends 

the label is misleading because Kroger’s product contains fruit syrup and apple 

juice concentrate. But the “Just Fruit” label does not expressly or impliedly say 

anything about the sugar content of the product, nor would a reasonable consumer 

interpret it as doing so—particularly when spreadable fruit products tend to contain 

added sugars. See Moore v. Trader Joe’s Co., 4 F.4th 874, 883–85 (9th Cir. 2021) 

(considering reasonable consumers as understanding the general characteristics of 

the products they purchase). 

3. In our view, the reasonable interpretation of the “Just Fruit” label 

forecloses Vitort’s claims that Kroger committed an unlawful trade practice under 

the OUTPA. Accordingly, the district court did not err in dismissing the case with 

2 The parties cite to our prior cases analyzing California’s articulation of the 

reasonable consumer test. While the Oregon Supreme Court has suggested that a 

reasonable consumer test applies to OUTPA claims, it has not held so directly. 

Pearson, 361 P.3d at 32, n.26 (“Presumably, whether [cigarette labeling] was a 

misrepresentation is determined based on an objective standard of what a 

reasonable consumer would understand the representation to be; no party argues 

otherwise in this case, and that is not an issue.”). Because the parties agree, we 

assume without deciding that our prior cases analyzing California’s reasonable 

consumer test provide guidance for analyzing Vitort’s Oregon state law claims.
5 

prejudice because Vitort “has not alleged, and cannot allege, facts to state a 

plausible claim that the [Just Fruit] label is false, deceptive, or misleading.” Ebner 

v. Fresh, Inc., 838 F.3d 958, 966 (9th Cir. 2016).

4. Because we affirm the district court on independent grounds, we do not

reach the Parties’ arguments about whether the Federal Food, Drug, and Cosmetic 

Act preempts Vitort’s third and fifth claims. See Moore, 4 F.4th at 880 (declining 

to reach preemption because representations were not misleading). Similarly, we 

do not reach Kroger’s argument that dismissal was separately justified because 

Vitort cannot establish that she experienced an ascertainable loss. 

AFFIRMED.