By law, packaged foods and beverages must bear an accurate list of their ingredients “in descending order of predominance by weight.” 21 C.F.R. § 101.4. Consumers routinely sue food and beverage companies alleging that they were misled about the presence or absence of particular ingredients—even though a mere glance at the ingredient list would have averted any confusion. Do such plaintiffs have a plausible claim for relief under false advertising laws, or should these claims be dismissed at the threshold?
Most relevant laws employ a “reasonable consumer” test: a label or advertisement is actionable if it would mislead ordinary consumers “acting reasonably in the circumstances.” But this just prompts the question: does the “reasonable” consumer check ingredient lists, or not? Courts have been surprisingly inconsistent in answering this question, and their reasoning and results often leave a bad taste in defendants’ mouths. In this post, we will review some of these decisions and explain why the better rule is that “reasonable” shoppers who care about products’ ingredients strongly enough to sue over them should be expected to take the minimal step of consulting the ingredient list.
Two Cases, Two Different Views Of What’s “Reasonable”
Consider two recent false advertising decisions from the Second Circuit, issued just eight days apart. In the first, Jessani v. Monini North America, Inc., 744 F. App’x 18 (2d Cir. Dec. 3, 2018), the court dismissed the claims of consumers who were allegedly misled to think that the defendant’s “White Truffle Flavored Extra Virgin Olive Oil” contained actual truffle. The product’s front label bore the words “White Truffle” in large type, with the word “Flavored” in much smaller type; it also featured a prominent image of an actual truffle:
The Second Circuit made short work of these claims. The Jessani panel found it “well settled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.” Id. at 19. And it proceeded to do just that, finding it “simply not plausible that a significant portion of the … public acting reasonably would conclude” that the product was made with actual truffles—“particularly … given that the product’s ingredient list contains no reference to the word ‘truffle’….” The court also noted the presence of the small-print word “Flavored” on the front label, and that the product was “modestly-priced,” while real truffles are very expensive.
Barely a week later, a different Second Circuit panel reinstated the false advertising claims of consumers who were allegedly misled to think that the “Whole Grain” variety of Cheez-It crackers contained not just some whole grains, but predominantly whole grains. Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. Dec. 11, 2018). The product’s front panel bore the words “Whole Grain” in large type. On some packages, “Whole Grain” was preceded by the words “Made With” in smaller type. All packages truthfully stated, in small print at the bottom of the front panel, exactly how much whole grain was present—e.g., “Made With 5g of Whole Grain Per Serving.” And all packages bore ingredient lists on the side panel that truthfully disclosed “enriched white flour” as the first ingredient, followed by “whole wheat flour” in either second or third place. The words “predominantly whole grain” (or similar language) appeared nowhere on the packaging:
The district court had dismissed the suit at the pleadings stage, holding that “the phrases ‘WHOLE GRAIN’ and ‘MADE WITH WHOLE GRAIN,’ when considered in the entire context of the Crackers’ packaging, would neither mislead nor deceive a reasonable consumer.” Mantikas v. Kellogg Co., 2017 U.S. Dist. 83311, at *10 (E.D.N.Y. May 31, 2017). The Second Circuit disagreed, finding that these phrases could communicate to a reasonable consumer “that the grain in the product is predominantly, if not entirely, whole grain.” 910 F.3d at 637 (emphasis altered). It dismissed out of hand the fact that the ingredient list identified “enriched white flour” in first position by weight, declaring that “reasonable consumers should not be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.” Id. (quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008)).
It is difficult to square Jessani’s express reliance on the product’s ingredient list to dispel any potential confusion with Mantikas’s flat assertion that reasonable consumers “should not be expected to look … [at] the ingredient list” to avoid misinterpreting front-of-box language. Perhaps the decisions are just irreconcilable. Or perhaps the explanation is that, in Jessani, there were other suspicion-inducing facts—the word “flavored” and the product’s “modest” price—that would prompt a consumer inclined to misinterpret the front of the package to double-check the correctness of her initial interpretation using the ingredient list. But is the word “flavored” in Jessani really that much more suspicion-inducing than the words “Made With” and/or “Made With 5g of Whole Grain Per Serving” in Mantikas?
In any event, Mantikas's holding seems inconsistent with the well-settled proposition—recognized in Mantikas itself—that, because “context is crucial” in the reasonable consumer analysis, courts must “consider the challenged [material] as a whole, including disclaimers and qualifying language.” Id. at 636 (emphasis added); see also Davis v. G.N. Mortg. Corp., 396 F.3d 869 (7th Cir. 2005) (courts must assess the “totality of the information made available to the plaintiff”). Cases like Mantikas effectively create a special exception for the packaging of grocery products: in this context alone, reasonable consumers are apparently permitted to disregard explanatory or qualifying language that is readily available to them, and that all consumers know is present.
Williams: The Ninth Circuit’s Influential Mistake
This purported “grocery exception” originated with Williams v. Gerber Products Co., a 2008 Ninth Circuit decision that launched a thousand food-labeling class actions, giving the Northern District of California its nickname: the “Food Court.” Here is the court’s relevant analysis in Williams, in its entirety:
We disagree with the district court that reasonable consumers should be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box. The ingredient list on the side of the box appears to comply with FDA regulations and certainly serves some purpose. [However, w]e do not think that the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misinterpretations and provide a shield for liability for the deception. Instead, reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging.
552 F.3d at 939-40.
Three things are notable about this brief (but influential) discussion. First, it cites no case law whatsoever. As noted above, there is copious, longstanding authority that “reasonable consumers” are expected to read the entire advertisement—including disclaimers and clarifying language—before deciding what it means. That is as true in California, where Williams arose, as it is elsewhere. See, e.g., Freeman v. Time, Inc., 68 F.3d 285 (9th Cir. 1995) (dismissing false advertising challenge to sweepstakes mailer that “stat[ed] in large type … that [plaintiff had] won the sweepstakes, qualified by language in smaller type indicating that [he] would win only if he returned a winning prize number”; holding that “[a]ny ambiguity” in the large-print headline “is dispelled by the promotion as a whole”). Williams fails to address or distinguish this well-settled rule.
Second, Williams’s discussion speculates about the intentions of the FDA, without actually citing any materials discussing or explaining the ingredient-list regulation. For example, while the court pooh-poohed the “small print” in which the ingredient list appears, the FDA has determined that its formatting requirements for that list make it sufficiently “conspicuous … as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use.” Food Labeling; Declaration of Ingredients – Final Rule, 58 Fed. Reg. 2850, 2872 (Jan. 6, 1993) (citing 21 U.S.C. § 343(f)). Likewise, the FDA appears to believe that “duplicative” information need not appear on “the principal display panel” (i.e., front of the package) “now that … all ingredients … [must] be declared in the ingredient list.” Id. at 2851.
Finally, and remarkably, Williams proclaims what reasonable consumers “should be expected” to do without consulting any empirical evidence of how consumers actually behave. Studies show that, contrary to the Ninth Circuit’s assumption, most consumers do regularly consult ingredient lists. For example, the FDA’s 2014 Health and Diet Survey asked consumers whether they read ingredient lists “often,” “sometimes,” “rarely,” or “never” when buying a product for the first time. Half of the respondents said that they do so “often,” and another 29% said they do so “sometimes.” And a total of 68% of respondents said they “often” or “sometimes” look at food labels for the specific purpose of “see[ing] if something said in advertising or on the package is actually true.” The percentage of consumers who read ingredient lists is surely even higher among the subset of consumers for whom a product’s ingredients actually matter—let alone those who care about ingredients enough to sue over them.
Other surveys are in accord. A 2018 survey by the International Food Information Council Foundation found that over half of consumers consult the ingredient list “often or always” when making purchasing decisions. Another 2018 study found that “a whopping 77 percent of Americans” read the Nutrition Facts label where the ingredient list is located. Yet another 2018 study concluded that “ingredients lists are powerful purchasing motivators”—indeed, that they “trump both the brand and product description in motivating purchase.” And a 2016 survey found that “[n]early three-quarters of consumers are reading the labels on their food, and over one-quarter do so with almost every item they buy.” It would appear, therefore, that the majority of consumers are not as lazy or helpless as Williams assumed the “reasonable” consumer to be.
Can Williams Be Limited To “Unambiguous” Deception?
Some courts have attempted to reconcile Williams with the rule that reasonable consumers must read advertisements in their totality. One recent district court opinion surveyed the case law and distilled the following principle: “Where a plaintiff contends that certain aspects of a product’s packaging are misleading …, but an ingredient label or other disclaimer would dispel any confusion, the crucial issue is whether the [allegedly] misleading content is ambiguous.” In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 910, 921-22 (N.D. Ill. Aug. 24, 2017). If the deceptive interpretation of the challenged packaging element is “unavoidable”—i.e., if it is unequivocally false—“then context will not cure the deception and the claim may proceed.” Id. But if the challenged element is “ambiguous”—i.e., merely capable of being misinterpreted—then the ingredient list “can cure the ambiguity and defeat the claim.” Id. Under this view, consumers act “unreasonably” if they “interpret ambiguous statements” in isolation when “[the] ingredient label would set them straight.” Id. at 922.
This “ambiguity” rule is clearly better than a flat proclamation that consumers need not consult ingredient lists to avoid possible confusion. However, it’s not immediately obvious when a statement or image crosses the line into ambiguous territory. In Parmesan, for example, the challenged statement was “100% Grated Parmesan Cheese.” This was allegedly misleading because the cheese products in question contained up to 9% cellulose (sawdust) “to prevent caking”—a fact that was disclosed in the ingredient list. Id. at 914-15.
The court found the challenged statement ambiguous: “Although ‘100% Grated Parmesan Cheese’ might be interpreted as saying that the product is 100% cheese and nothing else,” it observed, “it also might be an assertion that 100% of the cheese [in the product] is parmesan cheese, or that the parmesan cheese [in the product] is 100% grated.” Id. at 923. Given these alternate interpretations, the court found, “[r]easonable consumers” would consult the ingredient list “before concluding that the labels promised only cheese and nothing more.” Id.
The court attempted to distinguish Williams as a case where the challenged packaging elements were unambiguously false. Specifically, in Williams, “use of the words ‘Fruit Juice juxtaposed alongside images of fruits such as oranges, peaches, strawberries, and cherries’ was deceptive because the snacks contained no juice from any of those fruits and instead [contained] only white grape juice….” Parmesan, 275 F. Supp. 3d at 924 (quoting Williams, 552 F.3d at 936).
But it’s hard to see that as an example of unequivocal falsity, rather than ambiguity. In fact, Williams itself merely described the challenged elements in that case as “potentially suggesting (falsely) that those fruits or their juices are contained in the product.” 552 F.3d at 939 (emphasis added). Another “potential” interpretation is that the snacks contain “fruit juice” of some kind and that they taste like the pictured fruits—which is true. Cf. Workman v. Plum Inc., 141 F. Supp. 3d 1032, 1035 (N.D. Cal. 2015) (“One can hardly walk down the aisles of a supermarket without viewing large pictures depicting vegetable or fruit flavors, when the products themselves are largely made up of a different base ingredient.”).
But wherever one draws the line, it seems clear that, under Parmesan’s “ambiguity” rule, Mantikas (the Second Circuit’s Cheez-It case) was wrongly decided. The statement “Made With Whole Grain” was not unavoidably false: whole wheat flour was, after all, the product’s second or third ingredient by weight. The Second Circuit thought that reasonable consumers could read that statement to mean “made with only whole grain,” or “made with predominantly whole grain.” Perhaps so—but surely, it could also be read to mean what it says: that the product is made “with” whole grain, just as banana bread is made “with” banana and cinnamon buns are made “with” cinnamon. That’s exactly how the district court interpreted the challenged phrase—and the fact that different jurists read the same words differently means, almost by definition, that the statement is ambiguous. Under the Parmesan rule, therefore, the claims in Mantikas should have been “doomed by the readily accessible ingredient panels” that provide the correct interpretation of the challenged phrase. 275 F. Supp. 3d at 923.
For a decade, courts have struggled to rationalize and cabin the Ninth Circuit’s Williams decision. It’s clear why: Williams’ edict that reasonable consumers do not “look beyond … the front of the box to discover the truth from the ingredient list” is inconsistent with both generally applicable false advertising doctrine and with empirical fact. Courts should decline to follow in the Ninth Circuit’s footsteps, as the Second Circuit recently (and unfortunately) did in Mantikas. While the law obviously should not excuse fraud, at the same time, it should ordinarily expect consumers who truly care about the ingredients they consume to take the minimally burdensome step of turning food packages ninety degrees. “A reasonable consumer,” after all, does not “ignore the evidence plainly before him.” Daniel v. Tootsie Roll Indus., LLC, 2018 U.S. Dist. LEXIS 129143, at *35 (S.D.N.Y. Aug. 1, 2018).