Consumer product sellers often use back labels to provide context or additional information regarding statements made on their products' front labels. A recurring question in false advertising class actions is whether misleading or ambiguous statements on the front label of a product can be cured by more detailed information on the back label of the product.

This question has taken center stage in recent decisions interpreting consumer product sellers' claims about sustainability.

Courts remain divided on when to look to the back label, but the decisions — including several U.S. Court of Appeals for the Ninth Circuit cases — provide helpful guidance for mitigating the risk of class actions by giving manufacturers clues for things to include. A front-label asterisk, for example, might direct consumers to seek more information.

Meanwhile, recent district court decisions — including one in a California federal court in November — remain wary of giving manufacturers too much leeway where a reason to look at the back label cannot be found.

Ninth Circuit: Reasonable Consumers Might Check Back Label, But May Need Asterisk to Flag Ambiguity

The Ninth Circuit has recently addressed the issue of front-label ambiguity under California's Unfair Competition Law, or UCL; False Advertising Law, or FAL; and Consumer Legal Remedies Act, or CLRA. In three recent decisions, the court has explained when back-label clarifications might remedy ambiguities on a front label.

In Moore v. Trader Joe's Co., the Ninth Circuit found in 2021 that a product containing only 57% to 62% honey from the manuka flower could still be advertised as "100% Manuka Honey," as a belief by a plaintiff that honey could be limited to a single floral source was implausible.¹ The court asked whether the label was ambiguous, and thus whether a consumer would necessarily look beyond the front label of the product.

Expanding on that holding in 2023, the Ninth Circuit held in McGinity v. Proctor & Gamble Co. that, where a product's front label is ambiguous, rather than misleading, the court is allowed to consider additional information provided on the back label in order to resolve the ambiguity.²

The court, considering a "nature fusion" shampoo, held that the front label was ambiguous because the phrase was "devoid of concrete meaning," and the list of ingredients on the back label explained what was in the product. McGinity has quickly become a popular citation for back-label reliance.

The Ninth Circuit further clarified the rule last summer when it partially reinstated a dismissed false advertising class action in Whiteside v. Kimberly-Clark Corp.³ In that case, the plaintiffs alleged that the packaging of baby wipes — which uses the terms "plant-based" and "natural care" among images of plants — is misleading, since the products contain some synthetic ingredients.

The plaintiffs sued under the UCL, FAL and CLRA. The U.S. District Court for the Central District of California ruled that neither label was misleading, as the back label explained what was meant by "plant-based," and the asterisk created enough ambiguity that a consumer would check the reverse.

The plaintiffs' allegations were split between two variations of the label: One contained an asterisk and the nearby clarification "70%+ by weight," while the other omitted the front-label asterisk and disclaimer. For both products, the back of the packaging listed their ingredients, alongside the statement "NATURAL AND SYNTHETIC INGREDIENTS" in capital letters.

The defendant argued that the phrases "plant-based" and "natural care" are true — or, at worst, ambiguous — because consumers know that baby wipes do not "grow on trees" and must contain some synthetic materials in order to function. Thus, a reasonable consumer who cared about the product's ingredients would look to the back of the package for clarification.

The Ninth Circuit reversed the district court's dismissal — but only as to the products without the asterisk on the front label. Packages that said "plant-based" and "natural care" on the front label might be misleading, notwithstanding clarifying language on the back label — but where those front labels also included an asterisk and additional clarification, the appeals court found, packaging passed muster under California consumer protection statutes.

The Ninth Circuit held that a label is misleading if it is "unambiguously deceptive to an ordinary customer, such that they would not feel the need to check the back label." According to the court, a reasonable consumer might construe the phrase "plant-based" to mean that the wipes do not contain any synthetic materials.

Thus, the court determined the stand-alone phrases were misleading. On the other hand, with an asterisk and disclaimer, the same terms were merely ambiguous, rather than strictly misleading, so the court affirmed dismissal as to those labels.

In the Ninth Circuit, Trader Joe's, McGinity and Whiteside establish that a "front label is ambiguous when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation."⁴ Even a label with more than one plausible meaning can still be misleading, unless a consumer would necessarily seek clarification elsewhere.

Most recently, however, on Nov. 12, the Central District of California rejected the front-label ambiguity argument while partially dismissing a putative class action, Tarvin v. Olly Public Benefit Corp.⁵ The majority of the plaintiffs' claims, asserting that Olly dietary supplement gummies do not adequately disclose their serving size, were dismissed without prejudice by U.S. District Judge Wesley Hsu.

Unlike other dietary supplement products, Olly does not disclose the serving size on its front label, or explain there that the dosage size is measured per serving. This information does appear on the back. The plaintiffs argued that this omission misleads consumers into believing that the advertised dosage is present in each gummy.

The defendant, meanwhile, argued, among other things, that the labels were ambiguous at worst, and the ambiguity was cured by the back label. Bucking the recent trend, the court was unpersuaded by this argument.

The Tarvin court confirmed that the limitations on ambiguity that existed pre-McGinity were still intact, even after Whiteside. The court rejected the argument that simply because another reasonable interpretation exists, the label is automatically ambiguous. Representation of dosage without qualifying information is potentially deceptive, allowing the plaintiffs' UCL, FAL and CLRA claims to survive.

The court also rejected the defendant's other arguments, including the assertion that the products could not be misleading since they complied with U.S. Food and Drug Administration regulations. A regulatory safe harbor, the court reasoned, could apply to accuracy of measurements, but not omission of clarifying language as to how that measurement is presented.

Meanwhile, the court agreed that the representations on the front label were not so concrete as to establish an express or implied warranty, dismissing those claims alongside common law fraud claims. The court allowed the plaintiffs' unjust enrichment claim to proceed.

Regardless of how clearly described a product is on the back, a consumer — or a court — may see no reason to turn over the package unless the seller gives them one. Even major Ninth Circuit cases like Whiteside did not demolish the standards of California consumer protection law. Instead, they charted a specific path through them.

The presence of an asterisk, for example, suggests that more information is required to determine what representation is being made by a label, and may help the manufacturer receive the benefit of the doubt in close cases.

Eastern District of Missouri: Reasonable Consumers Will Look to Back Label to Clear Up Questions Raised by Front Label

Appellate court opinions have been considered by other jurisdictions wrestling with these issues. In a recent case in the U.S. District Court for the Eastern District of Missouri, for example, the court noted that "the Eighth Circuit has not foreclosed the possibility of looking to the back label to resolve ambiguity" when a front label does not contain a "prominent" misrepresentation.⁶

In Ellison-Robbins v. Bimbo Bakeries USA Inc., the plaintiff challenged the label on Bimbo's "All Butter Loaf Cake," as the product is not made entirely of butter.⁷ The accompanying picture, however, forecloses the conclusion that the product is a solid piece of butter.

Thus, according to the court, the consumer lacked the information to draw any conclusion as to what is meant by "all butter."⁸ The court, considering Whiteside among a variety of cases from various jurisdictions, considered the claim ambiguous but not misleading, and allowed reference to the ingredients list on the back label.

The court noted that the back-label defense still faces an uphill battle in several jurisdictions. In the U.S. Court of Appeals for the Seventh Circuit, for example, "100% grated parmesan cheese" was misleading, regardless of the ingredients list.⁹

The same was true for "hazelnut crème coffee" in the U.S. Court of Appeals for the First Circuit.¹⁰ The U.S. Court of Appeals for the Second Circuit, however, is willing to consider the back label — but only when the statement on the front was not "affirmatively inaccurate," a standard that was not met when the front of the package "arguably falsely implies that a prominently-mentioned ingredient … predominates."¹¹

Some terms are ambiguous enough to direct a consumer to the back in some jurisdictions, but others may need the helping hand an asterisk provides. For sellers of nationwide products, the need to protect a product from liability in every circuit likely requires a more definite direction to a product's back label — like an asterisk.

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The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

1. Moore v. Trader Joe's Co., 4 F.4th 874 (9th Cir. 2021).

2. McGinity v. Proctor & Gamble Co., 69 F.4th 1093 (9th Cir. 2023).

3. Whiteside v. Kimberly-Clark Corp., 108 F.4th 771, 781 (9th Cir. 2024).

4. Whiteside, 108 F.4th at 781.

5. No. 2:24-cv-06261-WLH-PD, 2024 U.S. Dist. LEXIS 205493 (C.D. Cal. Nov. 12, 2024).

6. Ellison-Robbins v. Bimbo Bakeries USA Inc , No. 4:23-cv-00232-SEP, 2024 U.S. Dist. LEXIS 175650 at *12 (E.D. Mo. Sept. 27, 2024).

7. Id.

8. Id.

9. Bell v. Publix Super Markets Inc. , 982 F.3d 468 (7th Cir. 2020).

10. Dumont v. Reily Foods Co. , 934 F.3d 35 (1st Cir. 2019).

11. Foster v. Whole Foods Mkt. Grp. Inc. , 23-285-cv, 2023 U.S. App. LEXIS 32491 (2nd Cir. Dec. 8, 2023); Venticinque v. Back to Nature Foods Co. , 23-1236-cv, 2024 U.S. App. LEXIS 17096 (2d Cir. July 12, 2024).