Attorney General Bonta: Consumers Deserve Uniform Standards, Clarity when Bringing Consumer Protection Lawsuits

OAKLAND - California Attorney General Rob Bonta today filed an amicus brief in Gulkarov v. Plum, PBC, a case that alleges unfair and deceptive practices after Plum failed to disclose to consumers that its baby food products contained trace amounts of heavy metals and perchlorate. In the brief, filed in the Ninth Circuit, Attorney General Bonta defends the right of consumers victimized by deceptive omissions to sue for remedy under California's consumer protection laws and supports the plaintiffs' motion to bring this issue to the California Supreme Court.

"California is home to some of the most robust consumer protections nationwide and consumers deserve full protection under those laws. However, current lack of clarity inhibits effective enforcement of these laws and creates confusion," said Attorney General Bonta. "We all understand that an omission can be as deceptive and harmful as an affirmative lie - the two should be treated the same when it comes to informing consumers about risks posed by the products they buy. I urge the Supreme Court to weigh in and apply Unfair Competition Law standards broadly to protect consumers from unfair and fraudulent business practices."

In the lawsuit, consumer plaintiffs sued Plum under state consumer laws including California's Unfair Competition Law (UCL), Consumers Legal Remedies Act, and False Advertising Law, for allegedly selling certain baby food products without disclosing that they contained trace amounts of heavy metals, including lead, and perchlorate. There is no known safe level of exposure to lead. High levels of exposure to lead early in life can lead to learning disabilities and behavioral difficulties. Children are particularly vulnerable to the potential harmful effects of lead exposure.

The district court in this case granted judgment to Plum under California consumer protection laws on the grounds that plaintiffs failed to meet certain prerequisites for demonstrating a viable consumer protection claim based on omissions rather than misrepresentations. In the brief, Attorney General Bonta urges the Ninth Circuit to request that the California Supreme Court weigh in on this case so that it can clarify the standard in deciding omissions liability in the context of consumer deception claims. The state Supreme Court has never treated deceptive omissions differently from deceptive statements in the context of the UCL and has repeatedly emphasized that plaintiffs in UCL deception cases need only show that consumers are likely to be deceived. Attorney General Bonta argues that the likelihood of deception standard should apply equally to all deceptive business conduct, whether it happens to result from a misleading statement, deceptive half-truth, or clever failure to mention an important truth.

Attorney General Bonta is committed to advocating for transparency for California consumers seeking justice. In February 2024, Attorney General Bonta filed an amicus brief in Capito v. San Jose Healthcare System, LP, a case that alleges unfair and deceptive emergency room billing practices involving a surprise fee charged to all patients. In the brief, filed in the California Supreme Court, Attorney General Bonta argues the UCL standards applied by lower courts are unclear, and encourages the court to clarify when plaintiffs can sue for fraudulent business acts or practices and to adopt a standard for unfair acts or practices in UCL cases. In April 2024, Attorney General Bonta filed an amicus brief in Rosenberg-Wohl v. State Farm Fire and Casualty Co. arguing that a UCL action is distinct from an action to recover policy benefits, therefore an insurance policy claims period cannot override the four-year statute of limitations that applies to all UCL actions.

A copy of the brief can be found here.