The Second Circuit recently decided an appeal of a putative consumer class action, in which New York Starbucks patrons alleged that the smell of freshly brewed coffee wasn’t the only thing wafting in the air at the famous coffee chain. Plaintiffs in George v. Starbucks Corp. alleged that Starbucks had engaged in deceptive marketing because, at the same time the company was promoting its coffee as high-end and high-quality, some of its New York stores were also liberally deploying noxious pesticides to contain insect infestations. Like a loafer to a cockroach, however, the district court and then the Second Circuit squashed plaintiffs’ claims, brought under the New York General Business Law.
The plaintiffs’ tale of woe unfolded as follows. Starbucks's marketing promises an oasis: the “finest whole bean coffees” — amounting to the “Best Coffee for the Best You” — in a warm and welcoming environment. Lured by Starbucks’s promise of a “PERFECT” coffee experience, as well as a smattering of other representations about the quality of its products, plaintiffs headed for various Big Apple locations. What they allegedly found, however, was that several of these establishments were infested with insects, including flies (of the fruit and house varieties), cockroaches, and silverfish. To address this infestation, Starbucks had deployed the “Hot Shot No-Pest 2 Strip,” which emitted a powerful pesticide — despite the fact that, according to the plaintiffs, the “Hot Shot” was not designed to be used around people.
After seeing this scene unfold, the plaintiffs made a bee line for federal court (specifically the Southern District of New York). They alleged that Starbucks’s promise of the “finest” and “best” coffee, as well as a “perfect” experience, misled reasonable consumers into believing that the stores were free of noxious pesticides. Had they known the truth, the plaintiffs alleged, they would not have patronized Starbucks.
The district court quickly dismissed the claims, reasoning that plaintiffs failed to allege that Starbucks made any actionable statements, i.e., statements “likely to mislead reasonable customers.” Instead, the statements in question were no more than “puffery” — vague and subjective claims about products that cannot be proven true or false. And even accepting plaintiffs’ argument that the advertising, viewed in its entirety, was “more than the sum of its parts,” the court found the allegations insufficient because plaintiffs “d[id] not allege that Starbucks’s advertisements communicate—even indirectly—any specific details about its products.” Thus, plaintiffs had not plausibly alleged that the disputed Starbucks advertising would mislead reasonable consumers about Starbucks’s use (or non-use) of noxious pesticides.
The Second Circuit summarily affirmed, adopting the district court’s view that most of the statements in question constituted non-actionable puffery as opposed to communicating any specific, falsifiable message. Although the court acknowledged that a few of the statements referenced in the complaint arguably communicated specific factual messages — such as “no artificial dyes or colors” — the court also noted that those statements had nothing to do with Starbucks’s use (or non-use) of pesticides in stores. Thus, the court held, to the extent the statements communicated a specific message, the alleged use of the pesticides in some Starbucks locations “would not render the statements misleading.”
In other words, the Second Circuit affirmed that plaintiffs claiming consumer fraud must allege not only that the challenged statement communicated a specific, falsifiable message, but also that the product failed to live up to that specific message (as opposed to the consumers’ general expectations of quality). Thus, even if Starbucks had communicated a specific message about its coffee — short of saying, say, “our coffee is never in the same room as any pesticides” — it’s not clear plaintiffs could have successfully shoehorned an unrelated gripe (the use of pesticides in stores) into a false advertising claim. The Second Circuit’s ruling is only the latest in a growing body of case law holding plaintiffs to the fundamental requirement that there must be a nexus between what the challenged advertising actually says and the consumer’s subjective expectation that was not met. (Check out our prior coverage of this issue here.)