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Reference to ‘Nature’ on Label Is Permissible Where Product Lists Synthetic Ingredients
Opinion Says Enumeration of Non-Natural Substances on Backs of Bottles Resolves Ambiguity
By a MetNews Staff Writer
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Depicted above is one of the Pantene products which, the Ninth U.S. Circuit Court of Appeals said Friday, does not violate California’s consumer protection statutes because, though it emphasizes the word “nature,” non-natural ingredients are listed on the back. |
The Ninth U.S. Circuit Court of Appeals Friday affirmed the dismissal of an action against Proctor & Gamble brought under California’s consumer protection statutes based on the depiction on the front side of the company’s Pantene-brand shampoos and hair conditioners of an avocado on a green leaf and the words, “NATURE FUSION” when non-natural ingredients are included.
Judge Ronald M. Gould wrote the opinion, in which Judges Marsha S. Berzon and Sandra S. Ikuta joined. Gould also authored a concurring opinion, which Berzon signed, bemoaning the growing “practice known as ‘greenwashing’ ”—the exaggeration of a product’s environmental friendliness.
Plaintiff Sean McGinity brought a putative class action under California’s Consumer Legal Remedies Act, False Advertising Law, and the Unfair Competition Law, contending:
“Defendant represents that the Products are natural, when, in fact, they contain non-natural and synthetic ingredients, harsh and potentially harmful ingredients, and are substantially unnatural. Defendant’s claims pertaining to the natural qualities of the Products are false, misleading, designed to deceive consumers into paying a price premium for the Products, and designed to mislead reasonable consumers into selecting Defendant’s Products over other competing [personal care products].”
Consumer Survey
The pleading continues:
“Indeed, a recent consumer survey of more than 400 consumers conducted by an independent third party evidences that more than 77% of consumers were deceived to believe the product contained more natural ingredients than artificial ingredients, when in fact that was not true. This lawsuit seeks to enjoin Defendant’s false and misleading practices and to recover damages and restitution on behalf of the class under applicable state laws.”
District Court Judge Yvonne Gonzalez Rogers of the Northern District of California dismissed the action without leave to amend.
Gould’s Opinion
In the opinion affirming that action, Gould said:
“[T]here is some ambiguity as to what ‘Nature Fusion’ means in the context of its packaging.”
McGinity, he noted, contends that it means the product contains of mixture of natural ingredients while Proctor & Gamble argued that it connotes a mixture of natural and synthetic ingredients.
Ambiguous Label
The judge declared:
“We hold that when, as here, a front label is ambiguous, the ambiguity can be resolved by reference to the back label. In addition to the ingredient lists, the back labels of the Nature Fusion shampoo and conditioner contain the phrases ‘Smoothness Inspired by Nature’ and ‘NatureFusion® Smoothing System With Avocado Oil.’ Upon seeing the back labels, it would be clear to a reasonable consumer that the avocado oil is the natural ingredient emphasized in P&G’s labeling and marketing. The ingredients list, which McGinity alleges includes many ingredients that are synthetic and that a reasonable consumer would not think are natural, clarifies that the rest of the ingredients are artificial and that the products thus contain both natural and synthetic ingredients.”
He said in a footnote:
“The image of the avocado on a green leaf is truthful because the products do contain avocado oil. The back label ingredient list thus ‘confirms’ the avocado image on the front label.”
In his concurring opinion, Gould observed:
“The practice of greenwashing has resulted from the increasing number of American consumers who want to buy environmentally friendly, or ‘green,’ products.”
He noted that the Federal Trade Commission has devised “Green Guides” which, under a regulation it promulgated, “discourage marketers from making broad environmental benefit claims like ‘green’ or ‘eco-friendly’ because they are ‘difficult to interpret and likely convey a wide range of meanings.’ ”
Seeing McGinity’s point of view, he recognized that the plaintiff was drawn to a product with the word “Nature” on it, expecting that was “of, by, and from ‘Nature’ ” when, it fact, it contained only one natural ingredient. Gould commented:
“The phrase ‘Nature Fusion’ may be more ambiguous and less deceptive than ‘green’ or ‘eco-friendly,’ but I still note how the use of such a phrase sounds alarm bells similar to those sounded in the Green Guides.”
The case is McGinity v. The Procter & Gamble Co., 22-15080.
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Above is a container of “ICELANDIC YOGURT,” made in New York. |
‘Icelandic Yogurt’
Also decided on Friday, by the same panel, was an appeal from the dismissal of an action brought by Rivka Steinberg in which she contended that a brand of skyr—described on the label as “ICELANDIC YOGURT”—is impliedly represented as being imported from Iceland when it isn’t.
The memorandum opinion says, quoting from McGinity:
“Steinberg’s complaint fails to allege that the product’s front label would deceive a reasonable consumer to believe that the product is manufactured in Iceland, because the front label’s ‘ambiguity |is| resolved by reference to the back label,’ which accurately states that the product is manufactured in New York.”
The backs of the packages say: “Distributed by Icelandic Provisions, New York, NY” and “Proudly made in Batavia, NY with domestic and imported ingredients.”
District Court Judge Edward M. Chen of the Northern District of California, in granting a motion to dismiss for failure to state a claim, said that while the matter of whether a reasonable consumer would be apt to be misled by wording on packages generally raises a triable issue, “rare situations where factual allegations may fail as a matter of law,” and this was one such instance.
That case is Steinberg v. Icelandic Provisions, Inc., 22-15287.
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