Scott+Scott Wins 9th Circuit Reversal of District Court’s Dismissal of Consumers’ Claims Concerning Nestle Juicy Juice Brain Development Beverage

March 8, 2013

The U.S. Court of Appeals for the Ninth Circuit issued a decision on March 8, 2013 in a consumer fraud class action concerning Nestlé USA Inc.’s Juicy Juice Brain Development beverage health claims, finding Plaintiffs, represented by Scott+Scott, Attorneys at Law, LLP (“Scott+Scott”), properly stated a claim under California’s unfair and deceptive trade practice and false advertising laws as to the purported cognitive benefits of drinking Brain Development beverages.

Plaintiffs alleged the Brain Development beverage was labeled and marketed to improve young children’s cognitive development with “minute quantities” of DHA.  Joseph P. Guglielmo of Scott+Scott argued before the Ninth Circuit panel that children would have to consume an impractical and extremely high quantity of the Brain Development beverage in order to obtain enough DHA to enhance cognitive function. On this basis, the appeals court determined that Plaintiffs adequately stated a claim that Nestlé’s marketing of the Brain Development product created, at least, the potential for consumer deception.

Moreover, the panel refused to dismiss under the primary jurisdiction doctrine – which holds that the U.S. Food and Drug Administration is better suited to regulate food and beverage labeling based on scientific policy than private litigants – because “the FDA has shown virtually no interest in regulating DHA in this context.”

Because the appeals court refused to address Nestlé’s effort to recast Plaintiffs’ claims into a case based on the prior substantiation doctrine, which only the government can bring, this decision has potentially wide ranging implications for consumers’ food labeling claims. 

Scott+Scott is a nationally recognized law firm headquartered in Connecticut with additional offices in New York City, Ohio and California.  The firm represents individuals as well as businesses, corporations, public and private pension funds and others who have suffered from corporate fraud and malfeasance.  Scott+Scott has participated in recovering billions of dollars and achieved precedent-setting reforms in corporate governance on behalf of its clients.  In addition to being involved in complex shareholder securities and corporate governance actions, Scott+Scott also has a significant national practice in antitrust, ERISA, consumer, civil rights and human rights litigation.  Through its efforts, Scott+Scott promotes corporate social responsibility.  For additional information or to ask questions about this case or other firm cases, please contact Joseph P. Guglielmo at or visit the firm’s website at