Tuesday, October 28, 2025
Page 3
C.A. Revives False Advertising Suit Over THC Levels in Joints
Opinion Says Demurrer to Putative Class Action Was Improperly Sustained Without Leave to Amend
By Kimber Cooley, associate editor
The Sixth District Court of Appeal has held that a trial judge erred in sustaining a demurrer without leave to amend to a putative class action complaint asserting false advertising claims based on the defendant’s purportedly false labeling in the company’s products indicating a high amount of the chemical in marijuana responsible for the intoxicating results.
Rejecting the defendant’s assertion that the fact that the plaintiffs did not allege that they had the products they purchased chemically analyzed for tetrahydrocannabinol (“THC”) levels was fatal to their claims, the court concluded that allegations in the operative pleading—based on independent testing performed months later on other items and assertions of controlled injections of a resin containing the compound—were sufficient to withstand dismissal.
Presiding Justice Mary J. Greenwood authored the unpublished opinion, filed Friday and posted to the California Courts website yesterday, saying:
“Defendant contends that testing its product is ‘akin to testing apples from one harvest and assuming identical fructose content across all apples grown at different times throughout the season.’…
“We are not persuaded….In this case, plaintiffs alleged that defendant had ‘control’ over the THC concentration by changing the amount of resin added to each batch. Further, the products’ labels specified the amount of THC in each package. Thus, unlike the variation that a person might expect for fruit grown on a farm, according to plaintiffs’ allegations defendant could control the THC content in its products and measured the precise amount as reflected on the products’ labels.”
Putative Class Action
The question arose after Christian Ayala and Emmett Reiner filed a putative class action against Central Coast Agriculture Inc. in November 2022 asserting false advertising claims under the Consumers Legal Remedies Act and other California statutes relating to the defendant’s labeling of its “Raw Garden Infused Joints.” Central Coast sells its products online and in stores throughout the state.
Each plaintiff alleged that he purchased a Raw Garden product between April and June 2022. However, neither party claimed to have those items tested for an analysis of THC content.
Instead, the plaintiffs cited a September 2022 story in the WeedWeek newsletter indicating that the marijuana-industry publication had sent out for chemical testing a single pre-rolled Raw Garden joint—that had been purportedly advertised as containing 44% THC—and discovered that the product only contained 25% of the compound. The plaintiffs also allege that their lawyer had a single item tested in November 2022, and it returned with similar results.
In the operative pleading, they said that “THC content ranks among the top five important attributes that consumers consider when purchasing cannabis in retail settings” and asserted:
“While Raw Garden offers a variety of Infused Joint Products, each of the Products is the same for all purposes relevant to Plaintiffs’ claims….[E]ach of the various strains…purport to have…THC levels between 35% to 40%. However, the testing performed by WeedWeek, together with independent testing…, reveal a dramatic underfilling of…the promised THC levels….”
Demurrer Sustained
Santa Clara Superior Court Judge Theodore C. Zayner sustained the defendant’s demurrer to the operative complaint in January 2024. He opined:
“These factual allegations are insufficient to establish that the amount of THC in the specific products purchased by Plaintiffs was less than the amount of THC listed on the product labels. Plaintiffs have not alleged facts showing that the Raw Garden Infused Joints tested by WeedWeek were the same products that were purchased by Plaintiffs in April and June 2022….
“Similarly, the fact that the…Product tested by Plaintiff’s counsel contained less THC than the amount listed on the…label does not demonstrate that [those] purchased by Plaintiffs also contained less THC than…listed on the product labels.”
Friday’s opinion, joined in by Justices Allison M. Danner and Daniel H. Bromberg, reverses the ensuing judgment of dismissal.
Sufficiently Stated Injury
Greenwood noted that “we are required to assume the truth of [the plaintiffs’] allegations” and opined that they had “sufficiently stated injury…as a result of defendant’s conduct” by asserting that they had paid a premium price for products that purportedly did not contain the quantities of THC that the labels advertised.
She reasoned:
“[P]laintiffs were not required to allege the evidence that they might rely on to establish that the products were underfilled with less THC than reported on the labeling….Consequently, defendant’s attacks on the sufficiency of the evidence to support plaintiffs’ allegations regarding THC underfilling in the products that they purchased—such as whether the relevant product strains were tested at the correct point in time, and whether the laboratories used the correct methodology or otherwise produced valid test results— were not a proper basis for demurrer.”
The jurist continued:
“[D]efendant’s contentions that biological or environmental factors—such as a strain’s DNA or the environment in which the product is harvested—may have affected whether the labels were inaccurate regarding THC levels were also not a proper basis for demurring to plaintiffs’ pleading. Neither the allegations in the pleading, nor any matter that was judicially noticed, sufficiently established the effect, if any, of such biological or environmental factors. Moreover, even assuming that biological or environmental factors affected THC content, defendant did not provide any legal authority establishing that this fact precluded liability for false or misleading labeling.”
Control Amount
Pointing to allegations in the operative pleading asserting that the defendant could control the total amount of THC in any product because the company added a concentrated “resin” containing the compound into their products, she remarked:
“To the extent defendant disputed these allegations, a demurrer was not the proper vehicle to challenge the allegation.”
Under those circumstances, Greenwood declared:
“[W]e determine that plaintiffs alleged sufficient facts establishing that the labels on the products they purchased were inaccurate regarding the quantity of THC. Accordingly, defendant’s demurrer for failure to state sufficient facts should have been overruled.”
The case is Ayala v. Central Coast Agriculture Inc., H052789.
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