A California federal court permitted a false advertising suit challenging an “up to” claim about an herbicide product to move forward after concluding that some consumers might have been confused about the labeling.

Gregory Arthur filed a putative class action last year against the makers of Spectracide Weed and Grass Killer Concentrate. The 16-, 32- and 64-fluid ounce bottles were intended to be diluted with water prior to use, and the top of each bottle stated in bold red letters how many gallons each bottle could produce. For example, the 32-fluid ounce Concentrate stated “Makes Up to 10 Gallons” while the 16-fluid ounce container advertised “Makes Up to 5 Gallons.”

However, on the back label of each bottle, a pamphlet delineated different instructions for dilution depending upon the level of “weed control” the user desired. For the 32-fluid ounce bottle, the Mixing Instructions section stated, “To kill newly emerged weeds: 3 fl oz (6 Tbsp) per gallon of water treats 300 sq ft.,” while “For general weed control: 5 fl oz (10 Tbsp) per gallon of water treats 300 sq ft.” and “For best results: 7 fl oz (14 Tbsp) per gallon of water treats 300 sq ft.”

Based on the dilution formula set forth on the back panel, each bottle could reach only a fraction of the defendant’s “up to” representations except for “newly emerged weeds,” according to Arthur’s complaint.

The defendant countered that the labels were not misleading, as the advertising reflected one of the values within the range of possibilities. The court was not convinced, and denied the defendant’s motion to dismiss. Whether or not the labels were misleading or deceptive was a finding more appropriately suited for the summary judgment phase, U.S. District Judge Christina A. Snyder wrote.

“[T]he court cannot conclude as a matter of law that a reasonable consumer would not be misled by the Concentrate label’s ‘makes up to’ language,” the court said. “In particular, each Concentrate bottle includes an explanation on the rear label that there are three different ‘amount to use’ options: for ‘best results,’ which is the least diluted mixing option; for ‘general weed control,’ the middle mixing options; and for ‘newly emerged weeds,’ the most diluted mixing option. Although these instructions are not hidden or abnormally small, they fail to explicitly state which option produces the ‘makes up to’ advertisement on the front label of the Concentrate bottle. Consequently, it appears that the three mixing options could result in confusion, as consumers would need to either calculate the ready-to-use quantities of all mixing options or guess which mixing option creates the ‘makes up to’ amount provided on the front label.”

Further, the court said that the inconsistency between the front label (where the 32-fluid ounce container states that it “makes up to 10 gallons”) and the rear label (where the same bottle states it “makes up to 20 gallons”) supported the denial of the motion to dismiss, as a reasonable consumer could be confused about the contradictory statements.

In light of these considerations, “the Court concludes that ‘a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled’ into thinking that the Concentrate product, when mixed for ‘best results’ or for ‘general weed control,’ would make up to 10 gallons of ready-to-use-product.”

The court did grant dismissal of the plaintiff’s request for injunctive relief, ruling it was pre-empted under the Federal Insecticide, Fungicide, and Rodenticide Act.

To read the order in Arthur v. United Industries Corp., click here.

Why it matters: In denying the plaintiff’s motion to dismiss, the court found that a reasonable consumer could be misled by the “makes up to” language, particularly as the front label did not specify the dilution level to which each claim applied. That left the possibility that two of the defendant’s dilution instructions were deceptive, the court said.