Salazar v. Walmart Inc.

Case Name: Salazar v. Walmart Inc.

Type of Case: False advertising

Court: 4th District Court of Appeal

Judge(s): Justice Carol D. Codrington, Justice Michael J. Raphael, Justice Frank J. Menetrez

appellant lawyers: Clarkson Law Firm, Glenn A. Danas, Ryan J. Clarkson, Yana Hart, Lauren E. Anderson

Appellee/Respondent Lawyers: Greenberg Traurig LLP, Dominic E. Draye, Gregory A. Nylen, Robert J. Herrington; DTO Law, William A. Delgado, Lauren Hudecki, David Ramirez-Galvez

Attorneys from Clarkson Law Firm, led by Glenn Danas, won a reversal of a trial court judgment in a case alleging false advertising. The California Court of Appeal revived David Salazar's consumer protection class action brought against Walmart Inc. after he purchased "Great Value White Baking Chips," incorrectly believing they contained white chocolate. Salazar v. Walmart, Salazar v. Walmart Inc., 83 Cal. App. 5th 561 (Cal. App. 4th Dist., Sept. 19, 2022).

Yana Hart

Salazar claimed he was misled to believe the White Baking Chips contained real white chocolate because of its label and placement near products with real chocolate. The trial court sustained Walmart's demurrers without leave to amend, finding as a matter of law that no consumer would reasonably believe the White Baking Chips contained real white chocolate. The word "chocolate" does not appear on the package, in the product name or in the ingredients list.

Danas said the firm conducted a survey showing that an overwhelming majority of consumers -- about 90% -- incorrectly believed the product included white chocolate. He also leveraged good case law from other courts, including the 7th Circuit decision in Bell v. Publix Super Markets, which brought a similar complaint over grated Parmesan cheese. The Bell decision held that an accurate list of ingredients doesn't mean that consumers won't still be deceived by an ambiguous front label.

Ryan J. Clarkson

"What kind of policy do we want; what kind of protections do we want for consumers? Do we want consumers to be held to the standard of an extremely sophisticated consumer protection lawyer, or do we want them to be able to rely on overt and obvious implications of food labeling?" Danas said. "The latter is where I think California's courts, including our Supreme Court, have come down, and we were able to direct the Court of Appeal in a way that brought it back to first principles of these consumer protection statutes and what sorts of policies they embody."

Ryan Clarkson, co-counsel on the case, highlighted the far-reaching consequences of the matter. California appellate decisions had previously applied California law in overt misstatements in packaging or labeling. The Court of Appeal's ruling helps lay out a path for courts to assess products that deceive through ambiguity or suggestion.

Lauren E. Anderson

"Framing this case in a way that emphasized its implications beyond the mislabeling of chocolate chips was critical to our success," wrote Clarkson in an email. "Salazar is a forceful reminder to food manufacturers and retailers like Walmart of their duty to consider labeling and advertising from the perspective of the reasonable consumer. It encourages corporations doing business in California to ask whether their advertising will be reasonably misunderstood by consumers and if so, to modify the advertising before taking it to market."

Danas also argued and won an appeal in a similar case against Target. Salazar v. Target, Salazar v. Target Corp., 83 Cal. App. 5th 571 (Cal. App. 4th Dist., Sept. 19, 2022).

Opposing counsel could not be reached for comment.

-- Jennifer Chung Klam