We regularly cover challenges to Made in USA” claims, particularly by the FTC, but most of the time those cases don’t rely on consumer perception evidence about what the claim means. So the recent class certification in the Central District of California in a case against R.C. Bigelow, Inc. caught our attention. Plaintiffs allege that Bigelow misrepresents that its tea is Manufactured in the USA” because the tea was processed abroad. They relied on a perception survey to spill the tea on consumer takeaway for the claim.

Starting in October 2017, Bigelow included Manufactured in the USA” claims on packaging for certain teas. Plaintiffs allege that because the tea was neither grown nor processed in the USA, Bigelow’s manufactured in the USA” claim constituted false advertising.

Bigelow claims that manufactured” referred only to the blending and packaging of the tea, both of which occurred in the USA. Plaintiffs, on the other hand, contend that manufactured” means processed” (including growing, picking, rolling, oxidizing, drying, and sorting), which allegedly occurred, at least in part, outside of the USA.

Plaintiffs relied on a consumer perception survey to demonstrate consumer understanding of the word manufactured” and support their argument that Manufactured in the USA” conveyed that the teas were processed in the USA. The consumer survey found that 84% of consumers understood manufactured in the USA” to mean that the tea was processed” in the USA.

No surprise that Bigelow took issue with the survey. They asserted that the survey: (1) did not define what processed” meant for the purpose the survey; (2) did not ask respondents to describe what processed” meant to them in the context of bringing tea to market; and (3) used only leading and closed-ended questions.

The Court disagreed with Bigelow and allowed the survey to come in, concluding that the word processed” was not as inherently ambiguous as Bigelow suggested, and that, despite the closed-ended questions, the survey included sufficient contrasting options. The Court relied in part on the survey in granting class certification, determining that the meaning of manufactured in the USA” is not so ambiguous as to create individual questions defeating predominance.

This decision makes clear that being technically correct may not be enough – in the context of survey evidence, consumer impressions may outweigh technical accuracy. Companies should think critically about how to substantiate domestic origin claims and consider whether the product undergoes processing outside of the USA. To avoid implying that more of the product was manufactured in the USA than actually was, companies can refer to the specific process or part of the product that was manufactured in the USA instead of referring to the general manufacture of the product.