108 F.4th 771
9th Cir.2024Background
- Plaintiff Summer Whiteside sued Kimberly Clark Corp., alleging "Huggies Natural Care® Baby Wipes" packaging was misleading in violation of California’s UCL, FAL, and CLRA.
- Packaging variously described wipes as "plant-based wipes" and "natural care®," with some labels featuring nature-themed imagery.
- Product labels fell into two categories: (1) with an asterisk and “70%+ by weight” qualifier (Asterisked Products) and (2) without any qualifier on the front (Unasterisked Products).
- The back label of all products disclosed "NATURAL AND SYNTHETIC INGREDIENTS."
- The district court dismissed the complaint for failure to plausibly allege that a reasonable consumer would be deceived, and plaintiff appealed.
- The Ninth Circuit reviewed de novo under Rule 12(b)(6), considering whether the labels could mislead a reasonable consumer at the pleading stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is it plausible that labeling ("plant-based," "natural care", images) misleads consumers into thinking wipes only have plant-based/natural ingredients? | Yes; reasonable consumers would read the front as promising only plant-based/natural ingredients. | No; "plant-based" can mean primarily, not exclusively, plant-based. | For Unasterisked: Yes, plausible. For Asterisked: No, clarified by qualifier. |
| Should back label disclaimers/ingredient lists defeat claims of deception at pleading stage? | No; Williams rule: misleading front label can't be cured by back label at pleading stage. | Yes; consumers could/should consult back label, esp. if front is ambiguous. | No, for Unasterisked Products; back label doesn't defeat claim at dismissal stage. |
| Is the term "plant-based" ambiguous, requiring reliance on the back label? | No; it can be unambiguously read as 100% plant-based by reasonable consumers. | Yes; it is ambiguous like "tomato-based" or other qualified terms. | No, for Unasterisked; ambiguity not shown simply due to multiple possible meanings. |
| Did plaintiff plead deception with sufficient particularity under Rule 9(b)? | Yes; complaint specifically identifies product purchased and label seen. | No; complaint fails to specify label sufficiently amid many variations. | Yes; plaintiff sufficiently identified the specific product/label purchased. |
Key Cases Cited
- Williams v. Gerber Prods. Co., 552 F.3d 934 (9th Cir. 2008) (misleading front label claims not defeated by back label at pleading stage)
- Ebner v. Fresh, Inc., 838 F.3d 958 (9th Cir. 2016) (ambiguous labels may consider context, including back label)
- Moore v. Trader Joe’s Co., 4 F.4th 874 (9th Cir. 2021) (consumers of specialty versus everyday mass-market products held to different standards)
- Stoner v. Santa Clara Cnty Office of Educ., 502 F.3d 1116 (9th Cir. 2007) (de novo review of Rule 12(b)(6) dismissals)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) pleading standards for fraud)