Can Your Thanksgiving Day Parade Float Communicate False Advertising Claims? – Lexology

King’s Hawaiian Bakery West makes a brand of rolls called, “King’s Hawaiian Original Hawaiian Sweet Rolls.” The rolls were originally made in Hawaii. King’s Hawaiian was established in Hilo, Hawaii in 1950, but now the rolls are made in Torrance, California. Is King’s Hawaiian misleading consume…….

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King’s Hawaiian Bakery West makes a brand of rolls called, “King’s Hawaiian Original Hawaiian Sweet Rolls.” The rolls were originally made in Hawaii. King’s Hawaiian was established in Hilo, Hawaii in 1950, but now the rolls are made in Torrance, California. Is King’s Hawaiian misleading consumers about where the rolls are produced? That was the issue in a recent decision issued by the United States District Court for the Northern District of California.

In addition to the references to “Hawaii” in the name of the product, the front of the packaging also includes the phrase, “EST. 1950 HILO, HAWAII.” The back of the packaging discloses the fact that the product is made in California. Here’s a picture of the product:

As you can see, and as the plaintiff acknowledged, there are no express claims on the front of the packaging about where the product is made. The plaintiff argued that, notwithstanding this, the packaging misleads reasonable consumers into believing that the product is still made in Hawaii and that the product is produced using traditional Hawaiian ingredients, such as pineapple and honey. The plaintiff also argued that the King’s Hawaiian Macy’s Thanksgiving Day Parade float further conveys that the product is made in Hawaii, through claims and imagery that are also evocative of Hawaii. For example, the name of the float is “The Aloha Spirit.”

The plaintiff asserted a variety of claims under New York and California law, including claims for false advertising. Ultimately, the key question is whether the packaging and other marketing of the product — including the company’s Thanksgiving Day Float! — are likely to be misleading to a reasonable consumer. In other words, is there a probability “that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.”

The court dismissed the complaint, holding that the plaintiff had failed to show that reasonable consumers are likely to be deceived.

First, the court found that the reference to the the company’s Hawaiian founding on the front of the packaging would not mislead consumers into believing that the product is still made there. The court wrote, “the mere use of a geographic reference, including a reference to the company’s historical origin, does not convey a representation about a product’s current origin.” Moreover, the court felt that the reference, on the back of the packaging, to where the product is actually made “is plainly sufficient to tell consumers where the sweet rolls are produced.”

Second, the court didn’t think there was any reason to believe that the packaging communicates that the rolls have special Hawaiian ingredients. Noting that King’s Hawaiian never claimed that it follows traditional production methods, the court said that the “packaging does not include any images suggesting inclusion of honey or pineapple in the sweet rolls.”

And, what about King Hawaiian’s Thanksgiving Day Parade float? The float featured a volcano, a waterfall, palm trees, an “Aloha!” sign, flowers, and other Hawaiian-themed details. The court didn’t think that the float was misleading either, holding that all that it communicated was the “spirit of Hawaii.”

Hodges v. King’s Hawaiian Bakery West, 2021 WL 5178825 (N.D.Cal. 2021).

“the mere use of a geographic reference, including a reference to the company’s historical origin, does not convey a representation about a product’s current origin”

Source: https://www.lexology.com/library/detail.aspx?g=336fb568-f1d7-4135-868b-1fa209464867

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