### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1850

J ENNIFER B EARDSALL

, et al.

, Plaintiffs

‐ Appellants

,

v.

CVS P HARMACY

, I NC

., et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16

‐ cv

‐ 06103

— Joan H. Lefkow

, Judge

.

____________________

A RGUED J ANUARY 15, 2020

— D ECIDED M ARCH 24, 2020

____________________

Before B AUER

, E ASTERBROOK

, and H AMILTON

, Circuit

Judges

.

H AMILTON

, Circuit Judge

. Plainti ff s brought state consumer

deception claims against defendant Fruit of the Earth and its

retailer clients. They alleged that defendants’ aloe vera prod

‐

ucts did not contain any aloe vera and lacked acemannan, a

compound that plainti ff s say is responsible for the plant’s2 No. 19

‐ 1850

therapeutic qualities. But uncontested facts drawn from dis

‐

covery showed these allegations to be false: the products were

made from aloe vera and contained at least some acemannan.

To stave o ff summary judgment, plainti ff s changed their

theory, claiming that the products were degraded and did not

contain enough acemannan. Plainti ff s 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 e ff ects associated with aloe vera.

Plainti ff s have not, however, presented evidence that some

concentration of acemannan is necessary to call a product aloe

or to produce a therapeutic e ff ect. Nor have they o ff ered evi

‐

dence that consumers care at all about acemannan concentra

‐

tion. Whatever theoretical merit these claims might have had

on a di ff erent record, this record simply does not contain evi

‐

dence that would allow a reasonable jury to fi nd in favor of

plainti ff s. With this dearth of evidence, the district court

granted summary judgment in favor of defendants. We af

‐

fi rm.

I. Undisputed Facts and Procedural Background

A. Facts

Defendant Fruit of the Earth, Inc. manufactures aloe vera

gel. It both sells the product under its own brand and pro

‐

duces private

‐ label versions for defendants CVS, Walgreens,

Walmart, and Target. At issue in this appeal are the Fruit of

the Earth and Walgreens products.

The two aloe vera gels are indisputably made from aloe

vera plants, though the raw aloe vera harvested by Fruit of

the Earth’s suppliers is processed both before and after being

delivered to Fruit of the Earth. The suppliers harvest, fi llet,No. 19

‐ 1850 3

and depulp the aloe vera leaves. The resulting aloe is then

pasteurized, fi ltered with active charcoal to remove color and

impurities, treated with preservatives, and dehydrated for

shipping. Fruit of the Earth then reconstitutes the dehydrated

aloe and adds stabilizers, thickeners, and preservatives to

make the fi nal gel product shelf

‐ stable. The parties agree that

the products are 98% aloe gel (the reconstituted aloe vera sol

‐ ids) and 2% other ingredients (stabilizers and preservatives).

The only relevant di ff erence between the products is the

labeling. Both labels describe the respective products as aloe

vera gel. Both also indicate that the products can be used to

treat dry, irritated, or sunburned skin. The Fruit of the Earth

label calls the product “Aloe Vera 100% Gel” and “100% Pure

Aloe Vera Gel.” An asterisk after “100% Gel” leads to infor

‐

mation on the back of the label: “Plus stabilizers and preserv

‐

atives to insure [sic] potency and e ffi cacy.” Each label contains

an ingredient list showing that the product contains aloe juice

and various other substances. The two labels are reproduced

in the a tt ached appendix. 1

B. Procedural History

Plainti ff s fi led state

‐ law consumer deception claims

against Fruit of the Earth, CVS, Walgreens, Walmart, and Tar

‐

get alleging that the labeling of the aloe vera gels—manufac

‐

1 Two distinct Fruit of the Earth labels were presented to the district

court: one contained an additional asterisk after “100% Pure Aloe Vera

Gel” leading to the same disclaimer as the front. On appeal, plaintiffs have

included in their brief a version of the bottle without an asterisk (repro

‐

duced in the Appendix). Defendants have included in their brief a version

of the bottle with an asterisk. Our decision does not depend on this differ

‐

ence.4 No. 19

‐ 1850

tured by Fruit of the Earth and sold under all of the defend

‐

ants’ brands—was misleading. The district court adopted a

bifurcated approach to discovery, allowing fact discovery for

the Fruit of the Earth and Walgreens products to proceed and

staying litigation over the others. The court then set a dead

‐

line for class certi fi cation, Daubert motions, and dispositive

motions.

After discovery was complete, plainti ff s moved for class

certi fi cation. Fruit of the Earth and Walgreens moved to ex

‐

clude the testimony of plainti ff s’ experts and moved for sum

‐

mary judgment. The district court denied defendants’ motion

to exclude the testimony of Dr. Edwards, plainti ff s’ expert

whose testimony focused on the amount of acemannan in de

‐

fendants’ products. The court granted summary judgment in

favor of Fruit of the Earth and Walgreens, fi nding no evidence

that the aloe gel labels would be likely to deceive a reasonable

consumer

. Plainti ff s’ motion for class certi fi cation and de

‐

fendants’ motion to exclude plainti ff s’ damages expert were

denied as moot. The parties then stipulated to the entry of a

fi nal judgment in favor of all defendants, and plainti ff s have

appealed.

II. Analysis

We review a grant of summary judgment de novo

, taking

the facts in the light most favorable to the non

‐ moving parties.

Suchanek v. Sturm Foods, Inc.

, 764 F.3d 750, 761 (7th Cir. 2014).

Summary judgment is appropriate “if the movant shows that

there is no genuine issue of material fact and the movant is

entitled to judgment as a ma tt er of law.” Fed. R. Civ. P. 56(a);

see also Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 251–52

(1986) (question on summary judgment is “whether the evi

‐No. 19

‐ 1850 5

dence presents a su ffi cient disagreement to require submis

‐

sion to a jury”). Though the movant bears the burden of show

‐ ing that summary judgment is appropriate, the non

‐ moving

party “may not rest upon mere allegations in the pleadings or

upon conclusory statements in a ffi davits; it must go beyond

the pleadings and support its contentions with proper docu

‐

mentary evidence.” Warsco v. Preferred Tech. Grp.

, 258 F.3d 557,

563 (7th Cir. 2001); see also Celotex Corp. v. Catre tt

, 477 U.S.

317, 322–23 (1986).

A. Legal Standard

Plainti ff s have brought claims under fourteen consumer

protection statutes spanning twelve di ff erent states. 2 These

2 Count I: California Consumer Legal Remedies Act, Cal. Civ. Code

§ 1750 et seq. (against Fruit of the Earth, CVS, Target, and Walgreens);

Count II: California False Advertising Law, Cal. Bus. & Prof. Code § 17500

et seq. (against Fruit of the Earth, CVS, Target, and Walgreens); Count III:

California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.

(against Fruit of the Earth, CVS, Target, and Walgreens); Count IV: Florida

Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq.

(against Fruit of the Earth, CVS, and Walgreens); Count V: Illinois Con

‐

sumer Fraud and Deceptive Practices Act, 815 Ill. Comp. Stat. 505/1 et seq.

(against Fruit of the Earth, CVS, Walgreens, and Walmart); Count VI:

Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq.

(against Fruit of the Earth and CVS); Count VII: Missouri Merchandising

Practices Act, Mo. Rev. Stat. § 407.010 et seq. (against Fruit of the Earth and

CVS); Count VIII: New Hampshire Regulation of Business Practices for

Consumer Protection, N.H. Rev. Stat. § 358

‐ A:1 et seq. (against CVS);

Count IX: New Jersey Consumer Fraud Act, N.J. Stat. § 56:8

‐ 1 et seq.

(against CVS); Count X: N.Y. Gen. Bus. Law § 349 et seq. (against Fruit of

the Earth, CVS, and Walgreens); Count XI: North Carolina Unfair and De

‐ ceptive Trade Practices Act, N.C. Gen. Stat. § 75

‐ 1.1 et seq. (against Fruit of

the Earth); Count XII: Ohio Consumer Sales Practices Act, Ohio Rev. Code

§ 1345.01 et seq. (against Fruit of the Earth); Count XIII: Oregon Unlawful

Trade Practices Act, Or. Rev. Stat. § 646.605 et seq. (against Fruit of the6 No. 19

‐ 1850

statutes all require plainti ff s to prove that the relevant labels

are likely to deceive reasonable consumers. See, e.g., Suchanek

,

764 F.3d at 756–57 (applying California, Illinois, New Jersey,

and New York law, among others); Fink v. Time Warner Cable

,

714 F.3d 739, 741 (2d Cir. 2013) (applying California and New

York law).

A label is deceptive if it is likely to mislead a reasonable

consumer in a material respect, even if it is not literally false.

Suchanek, 750 F.3d at 762, citing Williams v. Gerber Prods. Co.

,

552 F.3d 934, 938 (9th Cir. 2008), and Kraft

, Inc. v. FTC, 970 F.2d

311, 314 (7th Cir. 1992) (applying Federal Trade Commission

Act, 15 U.S.C. § 45); see also Bober v. Glaxo Wellcome PLC

,

246 F.3d 934, 938 (7th Cir. 2001) (applying Illinois law) (“[A]

statement is deceptive if it creates a likelihood of deception or

has the capacity to deceive.”); Ebner v. Fresh, Inc

., 838 F.3d 958,

965 (9th Cir. 2016) (applying California law) (“[T]he reasona

‐

ble consumer standard requires a probability that a signi fi cant

portion of the general consuming public or of targeted con

‐

sumers, acting reasonably in the circumstances, could be mis

‐ led.”) (internal quotation marks omi tt ed); Zlotnick v. Premier

Sales Grp., Inc.

, 480 F.3d 1281, 1284 (11th Cir. 2007) (applying

Florida Law) (“[D]eception occurs if there is a representation,

omission, or practice that is likely to mislead the consumer

acting reasonably in the circumstances, to the consumer’s det

‐

riment.”). This determination of the likelihood of deception

“is an impressionistic one more closely akin to a fi nding of

fact than a conclusion of law.” Suchanek

, 764 F.3d at 762, quot

‐ ing Kraft

, 970 F.2d at 317.

Earth); Count XIV: Texas Deceptive Trade Practices

‐ Consumer Protection

Act, Tex. Bus. & Com. Code § 17.41 et seq. (against Fruit of the Earth).No. 19

‐ 1850 7

B. Theories of Deception

Plainti ff s present three distinct but closely related theories

of deception. First, they say it is misleading for defendants to

call the products “aloe vera gel” because they have only low

concentrations of acemannan. Second, they say the labels are

misleading because the products do not provide the thera

‐ peutic e ff ects that one would expect from a product marketed

as aloe vera gel. And third, they say the Fruit of the Earth label

is particularly misleading by referring to the product as “Aloe

Vera 100% Gel” and “100% Pure Aloe Vera Gel.” We address

each theory in turn.

1. Acemannan Concentration and Aloe Vera Gel

Plainti ff s argue primarily that defendants’ labels are de

‐ ceptive because the products do not contain enough ace

‐

mannan to be marketed as “aloe vera gel.” Acemannan is a

polysaccharide found in aloe vera

. No reasonable consumer,

plainti ff s argue, would purchase an aloe vera product that

contains low concentrations of what plainti ff s maintain is an

important therapeutic component.

That might be a viable theory, at least in theory. The prob

‐

lem here is that plainti ff s have not presented any actual evi

‐

dence that the label is likely to mislead consumers about the

nature or quality of the product. Summary judgment is the

proverbial “‘put up or shut up’ moment in a lawsuit, when a

party must show what evidence it has that would convince a

trier of fact to accept its version of events.” Johnson v. Cam

‐ bridge Indus., Inc.

, 325 F.3d 892, 901 (7th Cir. 2003). In this case,

plainti ff s needed to o ff er evidence that reasonable consumers

were likely to be misled in a material way. Suchanek, 750 F.3d

at 762; see also Eli Lilly & Co. v. Arla Foods, Inc.

, 893 F.3d 375,8 No. 19

‐ 1850

382 (7th Cir. 2018) (applying Lanham Act: “the plainti ff ordi

‐ narily must produce evidence of actual consumer confusion

in order to carry its burden to show that the challenged state

‐

ment has ‘the tendency to deceive a substantial segment of its

audience’”), quoting Hot Wax, Inc. v. Turtle Wax, Inc.

, 191 F.3d

813, 819–20 (7th Cir. 1999). Plainti ff s have presented no evi

‐

dence that acemannan concentration itself is actually salient

to consumers. Compare Suchanek, 764 F.3d 753–54 (survey ev

‐

idence showed that consumers had strongly negative associ

‐

ation with instant co ff ee and viewed it as an inferior product);

Kraft

, 970 F.2d at 323 (survey evidence showed that consum

‐

ers made purchasing decisions based on calcium content of

cheese). Nor have plainti ff s presented evidence that some

concentration of acemannan is necessary to render the prod

‐

uct e ff ective. 3

Evidence of the acemannan concentration in defendants’

products—or of the raw aloe vera used to produce them—is

not enough if the evidence does not give us reason to believe

that consumers care about acemannan concentration. The

aloe sold to Fruit of the Earth contained 1.01% acemannan by

dry weight. Plainti ff s’ expert testi fi ed that fresh aloe—the raw

ingredient, not the fi nal product—should contain at least 5%

acemannan by dry weight, pointing to a trade organization’s

standards. Testing on the defendants’ fi nal product indicated

3 Acemannan is one of numerous possible active substances in aloe

vera and has been shown to promote healing. E.g., I. Iacopetti et al., Hya

‐

luronic acid, Manuka honey and Acemannan gel: Wound

‐ specific applications for

skin lesions

, 129 Res. in Veterinary Sci. 82, 83 (2020). But neither the relative

importance of these active substances nor relevant information on concen

‐

tration is in the record.No. 19

‐ 1850 9

correspondingly lower concentrations of acemannan in the fi

‐

nal product compared to what the expert expected in an aloe

product containing undiluted aloe juice. 4

Defendants challenge the admissibility of the expert re

‐

port providing that data, but this evidence makes no di ff er

‐

ence. Even if the products contained relatively low amounts

of acemannan, there is a critical gap in the evidence. Plainti ff s’

expert never testi fi ed that a product with lower acemannan

concentration cannot fairly be described as aloe. He also of

‐

fered no opinion on the relationship between aloe concentra

‐

tion and e ffi cacy. Indeed, plainti ff s failed in their brie fi ng and

at oral argument to point us to any scienti fi c evidence, inside

or outside the record, regarding the level of acemannan

needed to render an aloe vera product e ff ective, whatever that

might mean.

The deposition testimony presented by plainti ff s cannot

fi ll this evidentiary gap. Some of the plainti ff s testi fi ed that

they found the labeling to be misleading, particularly regard

‐ ing the characterization of the product as “100% Pure Aloe

Vera Gel.” They said nothing about the acemannan content of

the products, however. Rather, they all felt misled because

4 The plaintiffs’ expert testified that in undiluted aloe vera products,

he would expect to see acemannan concentrations of 200–500 mg/L. De

‐

fendants’ products measured 45 mg/L and 65 mg/L using the expert’s

method. Plaintiffs at times refer to the amount of acemannan present as

“trace,” “infinitesimally small,” “barely detectable,” and “nonexisten[t].”

They also insist that the products “d[o] not actually contain any discerna

‐

ble acemannan.” We are willing to assume that these statements were not

deliberate misrepresentations by counsel but were unchecked vestiges

from an earlier stage in the suit when plaintiffs were claiming incorrectly

that the products did not contain any aloe vera. Either way, the irony—

coming from plaintiffs claiming deceptive advertising—is not lost on us.10 No. 19

‐ 1850

they were incorrectly informed by their lawyers that the prod

‐

ucts contain li tt le or no aloe vera. This was all based on the

factually inaccurate theory that plainti ff s later had to aban

‐

don.

To survive summary judgment, plainti ff s needed to o ff er

evidence that consumers were materially misled. They did

not. As a result, plainti ff s’ reliance on Suchanek

, 764 F.3d 750,

Kraft

, 970 F.2d 311, and Al Haj v. P fi zer, Inc.

, No. 17 C 6730,

2019 WL 3202807 (N.D. Ill. July 16, 2019), is not only mis

‐ placed but illustrates precisely how their evidence is lacking.

In each of those cases, unlike this one, at least some extrinsic

evidence was o ff ered to show how consumers were likely to

be materially misled.

In Suchanek

, a manufacturer sold co ff ee pods for use in a

Keurig machine. The pods contained instant co ff ee rather

than the high

‐ quality roasted ground co ff ee beans that con

‐

sumers expected. 764 F.3d at 752–53. The front of the package

claimed that the pods contained “naturally roasted soluble

and microground Arabica Co ff ee” made with high

‐ quality

co ff ee beans. Id. at 753. The product, however, was more than

95% instant co ff ee. The plainti ff s in Suchanek o ff ered three sur

‐

veys showing that consumers expected one product (roasted

and ground co ff ee beans) and received something di ff erent

that they viewed as inferior (instant co ff ee). Id

. at 753–54. We

reversed summary judgment because the surveys created a

genuine issue of material fact as to whether the defendant’s

packaging was likely to mislead reasonable consumers. Id

. at

762.

In Kraft v. FTC

, we upheld an FTC order fi nding that Kraft

misrepresented the amount of calcium contained in KraftNo. 19

‐ 1850 11

cheese singles. 970 F.2d at 313. The relevant advertising cam

‐ paign told consumers that Kraft singles were more expensive

than competing cheese slices because they were made using

fi ve ounces of milk instead of cheaper ingredients. Id

. at 314.

While fi ve ounces of milk went into one Kraft single, 30% of

the calcium contained in the milk was lost during processing.

Kraft’s advertisements implied that one Kraft single provided

the same amount of calcium as fi ve ounces of milk.

We found substantial evidence supporting the FTC’s con

‐

clusion that reasonable consumers would be misled about the

calcium content of the product. 970 F.2d at 322. We did not

require extrinsic evidence of deception, but that was because

we credited the expertise of the FTC, and the misleading na

‐

ture of the challenged claim “was reasonably clear from the

face of the advertisement

. ” Id. at 319; see also id. (“Were this a

Lanham Act case, a reviewing court in all likelihood would

have relied on extrinsic evidence of consumer perceptions.”).

But in a ffi rming the FTC’s order, we relied on survey data to

establish that the deception was material, that is, that consum

‐

ers placed great importance on calcium consumption and that

exaggerated calcium content a ff ected consumers’ decisions to

buy Kraft singles. Id

. at 323.

In Al Haj v. P fi zer, Inc.

, Judge Feinerman denied summary

judgment for defendants on a claim that a label for “Maxi

‐

mum Strength” cough syrup was misleading. The plainti ff s

o ff ered evidence that, as compared to the “Regular Strength”

version, the “Maximum Strength” product contained a simi

‐

lar or lower active ingredient concentration (depending on

the ingredient), twice the dosage volume, and therefore half

the number of doses per bo tt le. 2019 WL 3202807, at *2. P fi zer

historically charged consumers more for the “Maximum12 No. 19

‐ 1850

Strength” version and continued this pricing structure even

after it reformulated the medicine to weaken the more expen

‐

sive “Maximum Strength” version. Id

. at *1–2. P fi zer’s own

market research indicated that “quite a few” customers

would be willing to spend more money on “Maximum

Strength” medicine because they perceived it to work be tt er

and to provide more value. Id

. at *3. And the named plainti ff

herself testi fi ed that she believed that the more expensive

product she purchased would be more e ff ective. The court de

‐

nied P fi zer’s motion for summary judgment because the lan

‐

guage “Maximum Strength” invited customers to assume

that, when considering the products side

‐ by

‐ side, the more

expensive “Maximum Strength” had a greater concentration

of maximum ingredients and more potency per volume than

“Regular Strength.” Id

. at *5. But the product was less concen

‐

trated, less cost

‐ e ff ective, and contained fewer doses.

In Suchanek

, Kraft

, and Al Haj

, the plainti ff s identi fi ed pre

‐ cisely how the manufacturers’ advertising was misleading

and provided evidence that the misrepresentation ma tt ered

to consumers. Plainti ff s here, in contrast, have o ff ered no evi

‐

dence that the products fell short of consumers’ expectations

in any material way. This is not to say that extrinsic evidence

in the form of consumer surveys or market research is always

needed for a plainti ff to survive summary judgment or judg

‐

ment as a ma tt er of law on a deceptive advertising claim. See,

e.g., Schering

‐ Plough Healthcare Products, Inc. v. Schwarz

Pharma, Inc.

, 586 F.3d 500, 512 (7th Cir. 2009) (under Lanham

Act, “a representation may be so obviously misleading that

there is no need to gather evidence that anyone was con

‐ fused”). But such evidence is necessary where the advertising

is not clearly misleading on its face and materiality is in

doubt.No. 19

‐ 1850 13

Despite this absence of evidence, plainti ff s argue that the

issue of whether a label is misleading is a question of fact that

must proceed to a jury. Courts must be careful at summary

judgment to view the evidence in the light most favorable to

the plainti ff and must send the case to a jury whenever a gen

‐

uine dispute of material fact exists. See Suchanek

, 764 F.3d at

762. But granting summary judgment is appropriate if no rea

‐

sonable jury could fi nd that defendants’ labels are likely to

mislead reasonable consumers. See Fink

, 714 F.3d at 741.

Plainti ff s here have not gone beyond the pleadings and sup

‐ ported their claims with the necessary evidence. Warsco

, 258

F.3d at 563.

Plainti ff s also suggest that their burden to produce “evi

‐

dence of what reasonable consumers believe” the label to

mean is “nonsensical.” Not so. The burden we invoke here

simply re fl ects the burden of production and persuasion

borne by plainti ff s in almost all civil litigation. Marion v.

Radtke

, 641 F.3d 874, 876 (7th Cir. 2011), citing Director, OWCP

v. Greenwich Collieries

, 512 U.S. 267 (1994).

Plainti ff s also say that summary judgment was inappro

‐ priate because the lawsuit was in the “class certi fi cation

phase.” We reject this argument. Plainti ff s bear no less of a

burden at summary judgment simply because the district

court set the same deadline for class certi fi cation and sum

‐

mary judgment motions. Where plainti ff s intend to rely on

market survey evidence to prove deception, rather than their

individual impressions and circumstances, that method of

proposed proof may be highly relevant in deciding whether

to certify a plainti ff class. To decide only class certi fi cation in

a consumer deception case, it may not be necessary for the

market surveys to be complete and in the record. The issue at14 No. 19

‐ 1850

class certi fi cation is whether plainti ff s intend to try to prove

their case on the merits through evidence common to class

members. Whether (later) survey evidence is admissible and

probative can be decided on the merits, and of course, a certi

‐

fi ed class can lose on the merits of its claims. E.g., Schleicher v.

Wendt

, 618 F.3d 679, 685 (7th Cir. 2010). As a response to a mo

‐

tion for summary judgment, however, a promise to come for

‐

ward with more evidence soon is not su ffi cient. A party who

needs more time for necessary fact fi nding should fi le a Rule

56(d) motion. Plainti ff s did not do that here.

2. Therapeutic E ffi cacy

Plainti ff s next argue that the defendants’ labels are mis

‐ leading because the products “have li tt le or no therapeutic

bene fi t” due to their lack of acemannan and cannot be used

e ff ectively for their stated purposes. We do not know whether

that is correct, but the problem is that plainti ff s have pre

‐

sented no evidence that the products at issue are ine ff ective

or that they do not contain enough acemannan to achieve a

therapeutic e ff ect.

Facing this dearth of evidence, plainti ff s ask us to shift the

burden to the defendants to prove that their products are ef

‐

fective. But in private consumer deception claims, the plainti ff

bears the burden of proving the defendant’s advertising claim

is false or misleading. Private individuals—unlike the Federal

Trade Commission—may not bring an action without sup

‐ porting evidence and merely demand that the defendant

prove the claim it makes for its products. Compare Kwan v.

SanMedica Int’l

, 854 F.3d 1088, 1096 (9th Cir. 2017) (under Cal

‐

ifornia false advertising law, plainti ff s “do not have the power

to require defendants to substantiate their advertising

claims”), citing National Council Against Health Fraud, Inc. v.No. 19

‐ 1850 15

King Bio Pharmaceuticals, Inc.

, 107 Cal. App. 4th 1336, 1344

(2003), with FTC v. Pantron I Corp.

, 33 F.3d 1088, 1096 (9th Cir.

1994) (FTC may rely on theory that advertiser lacked reason

‐

able basis for its claims).

3. “100% Pure” and Ambiguity

Plainti ff s’ last theory of deception centers on the Fruit of

the Earth label’s description of the product as “Aloe Vera

100% Gel” and “100% Pure Aloe Vera Gel.” As best we can

tell, plainti ff s think these phrases are misleading in two ways.

First, plainti ff s say these statements misrepresent the qual

‐ ity of the product by giving consumers the impression that

the product is “high quality” or “especially e ff ective” aloe

when it is not. But this is just a variant on the argument that

the products cannot be called aloe vera gel, and it fails for the

same reasons. Plainti ff s have presented no evidence indicat

‐ ing that consumers interpret these as statements of quality.

Just as they have presented no evidence showing that some

amount of acemannan is needed to call a product aloe vera,

they have presented no evidence that some amount of ace

‐

mannan is needed to call an aloe vera product “100% pure.”

Second, plainti ff s suggest that the label is misleading be

‐

cause the product contains preservatives and stabilizers and

is therefore not “100% Pure Aloe Vera Gel.” Speci fi cally,

plainti ff s object to the district court’s conclusion that the

“100% Gel” and “100% Pure” statements were ambiguous

with respect to the presence of stabilizers and preservatives

such that the statements could be clari fi ed by the ingredients

list. But plainti ff s conceded in their summary judgment brief

and deposition testimony that “the presence of preserva

‐

tives—in reasonably small amounts—was acceptable and16 No. 19

‐ 1850

something they expected ,” and that “[n]o [p]lainti ff took the

label to mean that there was absolutely nothing other than

aloe vera in the bo tt le.” 5 The presence of other substances in

the product—and the disclosure of those products in the in

‐ gredients list—is therefore irrelevant to the theories plainti ff s

have chosen to pursue. We are skeptical of defendants’ posi

‐

tion at oral argument that an asterisk pointing to an ingredi

‐

ent list in fi ne print could save virtually any deceptive slogan

claiming purity. Given plainti ff s’ arguments and testimony,

though, we need not decide here whether “100% Pure Aloe

Vera Gel” is ambiguous with respect to the presence of stabi

‐

lizers and preservatives.

Along similar lines, plainti ff s say that the district court

erred in considering the full ingredient list in determining

that the label was not deceptive. They point to a Food and

Drug Administration regulation, 21 C.F.R. § 701.1(b), which

states that the labeling of a cosmetic “may be misleading” by

bearing a “name which includes or suggests the name of one

or more but not all such ingredients, even though the names

of all such ingredients are stated elsewhere in the labeling.”

This regulation does not add anything, at least in this case, to

the relevant state law. Under the reasonable consumer stand

‐

ard, we look holistically at advertising to determine whether

it is misleading, Toulon v. Continental Casualty Co.

, 877 F.3d

725, 739 (7th Cir. 2017) (applying Illinois law), but disclosure

5 At other times, plaintiffs seem to object to defendants’ characteriza

‐

tion of the product as “100% Pure” because even though it contains 98%

“aloe gel,” the aloe gel is only 1% dehydrated aloe solids and 99% water.

This measurement reflects only the fact that the product uses rehydrated

aloe. Plaintiffs do not suggest that the products are excessively diluted by

the rehydration process.No. 19

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in an ingredient list cannot cure a clearly misleading state

‐

ment. Williams v. Gerber Products Co.

, 552 F.3d 934, 939 (9th

Cir. 2008) (applying California law). The federal regulation

says only that labeling may be misleading despite disclosure

in an ingredients list. The district court never suggested that

the disclosure of the ingredients list necessarily meant that the

label could not be misleading. 6

The judgment of the district court is

AFFIRMED.

6 Because the district court did not err in granting summary judgment,

we need not consider defendants’ argument that the consumer protection

claims fail because they are warranty claims in disguise.18 No. 19

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APPENDIXNo. 19

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