Ninth Circuit Further Refines Rule on When Back Labels Should Be Considered in False Advertising Claims

Last year, in an important decision for companies that routinely face false advertising claims, the Ninth Circuit held that when "a front label is ambiguous, the ambiguity can be resolved by reference to the back label." McGinity v. Procter & Gamble Co., 69 F.4th 1093, 1099 (9th Cir. 2023). The Ninth Circuit recently further clarified when reference to the back label is appropriate. See Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024).

Whiteside concerned two versions of baby wipes: the front label of one version contained the phrase "plant-based wipes" without further explanation, and the second featured an asterisk after "plant-based wipes*" and included a corresponding qualifying statement ("*70%+ by weight") on the front packaging. The back label of both version contained the phrase "NATURAL AND SYNTHETIC INGREDIENTS," followed by an ingredient list.

Plaintiffs alleged the labels were misleading because they suggested that the wipes contain only "water, natural ingredients, and ingredients that come from plants and that are not subject to chemical modification or processing," yet the wipes contain synthetic ingredients. The district court dismissed the complaint, finding that the labels were not misleading.

On appeal, the parties disputed how to apply the rule announced in McGinity. The defendant argued that a front label is "ambiguous"-thus permitting consideration of the back label-"if it can have more than one possible meaning." The plaintiff argued that if she plausibly alleged that a reasonable consumer would view the label as having one unambiguous (and deceptive) meaning, then the back label could not be considered. The Ninth Circuit sided with plaintiff, clarifying that "a front label is ambiguous if reasonable consumers would necessarily require more information before they could reasonably conclude that the front label was making a specific representation."

Applying that rule, the court held as to the labels without an asterisk that they were not ambiguous, because plaintiffs plausibly alleged that a reasonable consumer would understand the claim "plant-based" to mean "that the product is entirely plant-based and exclusively contains 'natural' materials." By contrast, the court held that the labels with an asterisk were not misleading. It explained that "the presence of an asterisk alone puts a consumer on notice that there are qualifications or caveats, making it unreasonable to assume that the [wipes] were 100% plant-based." It also agreed with the district court that the back-label ingredient list clarified any front-label ambiguity on these products.