The Ninth Circuit recently issued an important decision for consumer companies that routinely face false advertising litigation.  Resolving an issue that had split district courts in the circuit, the panel held that when “a front label is ambiguous, the ambiguity can be resolved by reference to the back label.”  McGinity v. Procter & Gamble Co.,– F.4d –, 2023 WL 3911531, at *4 (9th Cir. June 9, 2023).  The court also issued a memorandum affirming the dismissal of a complaint against Icelandic Provisions on the same grounds; Covington represented the company in that matter.  See Steinberg v. Icelandic Provisions, Inc., 2023 WL 3918257, at *1 (9th Cir. June 9, 2023).  With these decisions, the Ninth Circuit joins the growing consensus that back labels must be considered when a challenged front label claim is ambiguous.  See, e.g., Foster v. Whole Foods Mkt. Grp., Inc., 2023 WL 1766167, at *3 (E.D.N.Y. Feb. 3, 2023).

The McGinity case concerned “Pantene Pro-V Nature Fusion” shampoo and conditioner, which feature front labels with “Nature Fusion” in bold, capitalized text alongside an image of an avocado on a green leaf.  Plaintiff alleged that the labeling conveyed that the products are natural, when in fact they allegedly contained synthetic ingredients.  He brought claims under various California laws, asserting the labeling was false and misleading to a reasonable consumer.  Plaintiff supported his complaint with a survey that purported to show that about half of survey respondents interpreted “Nature Fusion” to mean that the product contained only natural ingredients.  Furthermore, nearly 75% of respondents thought the label conveyed that the shampoo contained more natural than synthetic ingredients. 

The Ninth Circuit agreed with the district court’s dismissal of the complaint for failure to state a claim.  The court observed that the challenged front-of-pack representations at issue were ambiguous, as even plaintiff’s survey evidence suggested.  In light of that ambiguity, the court concluded it was appropriate to consult back label disclosures for additional context.   

Applying that principle, the court analyzed the back label, which contained representations that made clear that “Nature Fusion” referred to the use of natural avocado oil in the products.  The court observed the ingredient list on the back panel would dispel any confusion on the part of a reasonable consumer as to whether the rest of the ingredients were natural or synthetic.  Accordingly, the court concluded that “[w]ith the entire product in hand . . . no reasonable consumer would think that the products are completely or substantially natural.” This decision will be important and welcome news for false advertising defendants that have had difficulty convincing district courts to review the entirety of a package with allegedly misleading front-of-pack representations.  If those challenged representations are ambiguous (as opposed to plainly false or deceptive), this opinion instructs courts to consider whether disclosures elsewhere on the package offer clarifying context.