The Ninth Circuit Court of Appeals recently issued three noteworthy decisions holding that courts may consider information on the back or side of consumer product labels to clarify any ambiguous language on the front labels in considering whether consumer protection claims are plausibly alleged at the pleading stage: McGinity v. The Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023);1 Steinberg v. Icelandic Provisions, Inc., No. 22-15287 (9th Cir. 2023); and Robles v. GOJO Indus., Inc., No. 22-55627 (9th Cir. 2023) ("Robles fails to state a claim because she does not plausibly allege that the front label is literally false or that the front label, as clarified by the back label, is false or misleading"). In each of the foregoing cases, the Ninth Circuit affirmed the district court's dismissal of consumer protection claims for failure to state a claim. Specifically, plaintiffs failed to state a plausible claim that a reasonable consumer would be misled by information on the front of the product label in light of clarifying information contained on the back product label.
District courts within the Ninth Circuit have taken note. Just this month, three California district courts entered orders granting motions to dismiss consumer protection claims based on consideration of information on the entirety of the products' labels.
On October 19, 2023, the Northern District of California entered an order granting Defendant Christian Dior Perfumes, LLC's ("Dior") motion to dismiss claims alleging that Dior deceptively labels and advertises the SPF benefits of certain cosmetic products. Slaten v. Christian Dior Perfumes, LLC, No. 23-CV-00409-JSC, Dkt. 69 (N.D. Cal.) Plaintiff alleged that Dior's Forever Foundation product, a cosmetic that also contains sunscreen, has deceptive labeling that suggests that the "24H" representation on the front label provides 24 hours of cosmetic coverage and sunscreen protection. In reviewing the product's front label and discussing its layout, the court held that the front label is ambiguous as to whether the "24H" representation applies to the foundation alone or also to the product's sun protection benefits. Citing McGinity, the court rejected arguments that a consumer needs only consider the front product label in presenting false advertising claims and concluded that it must also consider whether information on the product's back label, including, in this case, the drug facts panel mandated by the FDA, cures the front label's ambiguity. The court held that it did. After referencing the product's back label sunscreen instruction to reapply "at least every 2 hours," the court concluded that "no reasonable consumer would believe that the '24H' representation applies to the sun protection benefits" of the Dior product.
That same day, another judge in the Northern District of California entered an order granting Del Monte Foods, Inc.'s ("Del Monte") motion to dismiss claims alleging that the "new look for fruit naturals" statement on the front label of Del Monte's fruit cup products misleads consumers to believe that the products contained only natural ingredients. Bryan v. Del Monte Foods, Inc., No. 23-cv-865-MMC, Dkt. 43 (N.D. Cal.)2 The court held that the challenged statement was ambiguous, similar to the "Nature Fusion" representation at-issue in McGinity, because it does not make any affirmative promise about what proportion of the ingredients are natural. The court found that such ambiguity can be resolved by reference to the back label, which clearly discloses the inclusion of multiple synthetic ingredients. Accordingly, the plaintiff "has not plausibly alleged that the Products' front label, as clarified by the back label, would mislead a reasonable consumer into thinking that the Products contain no synthetic ingredients."
On October 20, 2023, the Central District of California entered an order granting CVS Pharmacy, Inc.'s ("CVS") motion for reconsideration of an order denying CVS's motion to dismiss. Mier v. CVS Pharmacy, Inc., No. 20-cv-1979 (C.D. Cal.) In Mier, plaintiffs alleged that CVS's hand sanitizer product misleads consumers by representing on the front label that it "Kills 99.99% of Germs,*" when evidence shows that many types of germs are not killed by alcohol-based hand sanitizers. The asterisk refers consumers to language on the back label: "*Effective at eliminating 99.99% of many common harmful germs and bacteria in as little as 15 seconds." The court denied CVS's motion to dismiss holding that it was a question of fact "[w]hether th[e] qualification on the back label clears up a consumer's potential confusion that the Product kills 99.9% of germs." CVS asked the court to reconsider its ruling and dismiss plaintiffs' claims in light of the Ninth Circuit's opinions in McGinity and Robles. The court was persuaded. Although the court did not consider Robles to be precedential, the court found it to be useful guidance for how the Circuit has applied its holding in McGinity in addressing a nearly identical hand sanitizer label. Specifically, "[r]ather than contradict the front label, the back label explains to the consumer what population of germs the 99.99% claim applies to[.]" Accordingly, the court held that the plaintiffs did not meet their burden to state a claim that a reasonable consumer would be misled by the product's labeling.
The recent Ninth Circuit precedent and district court cases have meaningful implications for retailers and manufacturers' class action litigation strategies in defending claims alleging that a consumer product's label is false or misleading. The courts' clarification and application of the reasonable consumer standard provides helpful guidance in considering whether to seek dismissal at the pleading stage when a product label is not literally false or may be ambiguous. Based on these recent decisions, courts are rejecting the plaintiffs' argument that Ninth Circuit "precedent" requires courts to only consider the front label in assessing whether a plaintiff's consumer protection claims are plausibly alleged. Instead, they are applying the reasonable consumer standard at the pleading stage in a reasonable way; by considering the entirety of a consumer product's labeling in evaluating whether plaintiff's false advertising claims are plausible.
Footnotes
1. The McGinity decision is further summarized here.
2. The authors of this article are counsel of record for Del Monte in the Bryan matter.
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