SEAN MCGINITY v. THE PROCTER & GAMBLE COMPANY
No. 22-15080
United States Court of Appeals for the Ninth Circuit
June 9, 2023
D.C. No. 4:20-cv-08164-YGR
FOR PUBLICATION
Aрpeal from the United States District Court for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted March 29, 2023
San Francisco, California
Before: Ronald M. Gould, Marsha S. Berzon, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould;
Concurrence by Judge Gould
SUMMARY*
Product Labeling
The panel affirmed the district court’s
McGinity contended that P&G’s packaging represents that the Products аre natural, when, in fact, they contain non-natural and synthetic ingredients, harsh and potentially harmful ingredients, and are substantially unnatural. McGinity stated that if he had known when he purchased them that the products were not from nature or otherwise natural, he would not have purchased the products or paid a price premium for the products. McGinity asserted claims under California’s Unfair Competition Law (UCL), California’s False Advеrtising Law (FAL), and California’s Consumers Legal Remedies Act (CLRA).
McGinity’s claims under the UCL, FAL, and CLRA are governed by the reasonable consumer standard. The panel held that there was some ambiguity as to what Nature Fusion means in the context of its packaging, and it must consider what additional information other than the front label was available to consumers of the P&G products. The panel rejected McGinity’s contention that circuit precedent precluded P&G from relying on the back ingredient list to derive the meaning of Nature Fusion. Here, the front label containing the words Nature Fusion was not misleading—rather, it was ambiguous. Upon seeing the back label, it would be clear to a reasonable consumer that avocado oil is the natural ingredient emphasized in P&G’s labeling and marketing.
McGinity relied heavily on the results of the consumer survey that his counsel had commissioned from a third party. The panel held that although it accepted the allegations concerning the survey as true at this stage of litigation, the survey was not particularly instructive or helpful in deciding this case. Here, the survey participants did not have access to the back label of the products. This omission to a degree undermined the extent to which the panel could fairly rely on the survey results as being instructive of how the reasonable consumer understood the phrase Nature Fusion in the context of the products. Rather than demonstrating that the phrase Nature Fusion was misleading, the survey results confirmed that it was ambiguous. With the entire product in hand, the panel concluded that no reasonable consumer would think that the products were either completely or substantially natural. The survey results did not make plausible the allegation that the рhrase Nature Fusion was misleading.
Judge Gould, joined by Judge Berzon, concurred. Although McGinity did not successfully show that P&G’s Nature Fusion labeling was deceptive as a matter of law, he wrote separately to express his view that P&G’s labeling nonetheless resembled a concerning practice known as greenwashing. Greenwashing refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact or attributes of a product. Here, although there was only one natural ingredient in the products, the word Nature was in bold, capitalized text on the front labels and was one of the largest words on the bottles, second only to the brand name, Pantene.
COUNSEL
George V. Granade (argued), Reese LLP, Los Angeles, California; Michael Reese, Reese LLP, New York, New York; for Plaintiff-Appellant.
Anne M. Voigts (argued), King & Spalding LLP, Palo Alto, California; John P. Hooper, King & Spalding LLP, New York, New York; George R. Morris, Deputy Attorney General; Office of the California Attorney General; San Francisco, California; for Defendant-Appellee.
GOULD, Circuit Judge:
Plaintiff-Appellant Sean McGinity sued Defendant-Appellee The Procter & Gamble Company (P&G), alleging that P&G violated California consumer protection laws by labeling some of its products with the words Nature Fusion in bold, capitalized text, with an image of an avocado on a green leaf. After the district court dismissed McGinity’s second amended complaint for failure to state a claim under
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The products
In June 2019, Sean McGinity purchased Pantene Pro-V Nature Fusion
McGinity contends that P&G’s packaging 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. McGinity has stated that he purchased the products, and paid a prеmium for them, because he wanted to buy natural personal care products. If McGinity had known when he purchased them that the products were not from nature or otherwise natural, he would not have purchased the products or paid a price premium for the products.
McGinity’s counsel commissioned an independent third party to conduct a survey of more than 400 consumers regarding their impressions of the products’ front labels. Survey participants did not have access to the products’ back labels. Survey results showed that, when given pictures of the front of the products, 74.9% of consumers thought the label conveyed that the shampoo contained more natural than synthetic/artificial ingredients, and 77.4% of consumers thought the same about the conditioner. When asked about the phrase Nature Fusion, 52.6% of consumers thought that the phrase Nature Fusion meant that the product did not contain synthetic ingredients; 49.1% of consumers thought that the phrase Nature Fusion meant that the product contained only natural ingredients; and 69.2% of consumers thought that the phrase Nature Fusion meant that the product contained both natural and synthetic ingredients.
B. Procedural history
McGinity asserted claims under California’s Unfair Competition Law (UCL), California’s False Advertising Law (FAL), and California’s Consumers Legal Rеmedies Act (CLRA). P&G moved to dismiss McGinity’s original complaint under
II. STANDARD OF REVIEW
We review de novo the district court’s grant of a motion to dismiss under
A. Deceptive or misleading practice
Appellant’s claims under the UCL, FAL, and CLRA are governed by the reasonable consumer standard. Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008). That standard requires that Appellants show that members of the public are likely to be deceived. Id. (internal quotation marks and citation omitted). The California Supreme Court has recognized that these statutes prohibit explicitly false advertising and advertising that is either actually misleading[,] or which has a capacity, likelihood[,] or tendency to deceive or confuse the public. Id. (quoting Kasky v. Nike, Inc., 27 Cal.4th 939, 951 (2002)). The reasonable consumer standard requires more than a mere possibility that the label might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Ebner, 838 F.3d at 965 (quoting Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). Rather, the reasonable consumer standard requires a probability that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled. Id. (citation omitted). The touchstone under the reasonable consumer test is whether the product labeling and ads promoting the products have a meaningful capacity to deceive consumers.
In Moore v. Trader Joe’s Co., we held that the label 100% New Zealand Manuka Honey was not likely to deceive a reasonable consumer into believing that the product contained only honey from the Manuka flower. 4 F.4th 874, 876–77 (9th Cir. 2021). We reasoned that there was some ambiguity as to what 100% mean[t] in the phrase, ‘100% New Zealand Mаnuka Honey’: it could mean, as examples, that the Manuka flower was the only source of the honey, that the Manuka flower was the primary source of the honey, or that 100% of the honey was from New Zealand. Id. at 882. Because of this ambiguity, we explained that reasonable consumers would necessarily require more information before they could reasonably conclude Trader Joe’s label promised a hоney that was 100% derived from a single, floral source. Id. This additional information could be something on the rest of the packaging (e.g., the ingredient list), the relative price of the product, or in the context of honey, general knowledge about how honey is made. See id. at 882–85. While the reasonable consumer is not expected to be an expert in honey production, the reasonable consumer should know that beekeepers cannot force bees to gather honey from only certain types of flowers. Id. at 883. We agreed with the district court’s conclusion that other available information about Trader Joe’s Manuka Honey would dissuade a reasonable consumer from thinking that the product was derived only from Manuka flower nectar. Id. at 882-883.
Here, like in Trader Joe’s, there is some ambiguity as to what Nature Fusion means in the context of its packaging. Appеllants argue that the phrase could be interpreted to mean that the product contains a mixture of natural ingredients, while Appellees argue that the phrase should be interpreted to mean that the product contains a mixture of both natural and synthetic ingredients. The ambiguity of the phrase is further shown by the nearly 50/50 split in survey responses interpreting whether the phrase means that the products are all-natural and lack synthetic ingredients.1 At the same time,
Whether a back label ingredients list can ameliorate any tendency of [a] label tо mislead depends on whether the back label ingredients list . . . conflict[s] with or confirm[s] a front label claim. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1017 (9th Cir. 2020) (citation omitted). In other words, if a defendant does commit an act of deception on the front of a product, then the presence of fine print revealing the truth is insufficient to dispel that deception. See Ebner, 838 F.3d at 966. However, the front label must be unambiguously deceptive for a defendant to be precluded from insisting that the back label be considered together with the front label. See id. (considering the rest of the product’s packaging when there was no deceptive act to be dispelled on the front).
In Williams v. Gerber Products, we held that the back ingredient label on Gerber’s Fruit Juice Snacks could not cure the misleading nature of the front and side of the package. 552 F.3d at 939. The front label of Gerber’s fruit juice snacks contained the phrase fruit juicе snacks, pictures of fruits, and the side label stated that the product was made with real fruit juice and other all natural ingredients. Id. at 936. However, when consumers turned the package over, they would discover that the product did not contain juice from any of the fruits pictured on the front and that the first two ingredients listed, showing their prominent role in the manufacturing of the product, were corn syrup and sugar. Id. We explained that the purрose of the ingredients list should be to confirm the representations on the front or other parts of a package. Id. at 939–40. We stated: We 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. Id. (emphasis added).
Here, the front label containing the words Nature Fusion is not misleading—rather, it is ambiguous.2 Unlike a label declaring that a product is 100% natural or all natural, the front Nature Fusion label does not promise that the product is wholly natural. Although the front label represents that something about the product bears a relationship to nature, the front label does not make any аffirmative promise about what proportion of the ingredients are natural. Instead, as the parties point out, Nature Fusion could mean any of a number of things: that the products are made with a mixture of natural and synthetic ingredients, that the products are made with a mixture of different natural ingredients, or something else entirely.
natural, clarifies that the rest of the ingredients are artificial and that the products thus contain both natural and synthetic ingredients.
B. The consumer survey
McGinity relies heavily on the results of the consumer survey that his counsel had commissioned from a third party. Although we accept the allegations concerning the survey as true at this stage of litigation, the survey is not particulаrly instructive or helpful to us in deciding this case.
The consumer survey in Becerra v. Dr Pepper/Seven Up, Inc. was similarly unhelpful. 945 F.3d 1225 (9th Cir. 2019). In Becerra, the survey concerned consumers’ understanding of the word diet in the context of Diet Dr. Pepper soda products. Id. at 1230. Becerra alleged that the survey in that case showed that consumers expect a diet soft drink to either help them lose weight, or help maintain or not affect their weight. Id. at 1230. However, we agreed with the district court that it was difficult to tell what questions were asked in the survey. Id. at 1230–31. Because the survey did not adequately address the crux of the issue (whether the reasonable consumer would understand the word diet in the context of Diet Dr. Pepper as a relative claim about the calorie or sugar content), we held that the survey did not make plausible the allegation that reasonable consumers are misled by the term ‘diet.’ Id. at 1231.
Here, the survey participants did not have access to the back label of the products. This omission to a degree undermines the extent to which we can fairly rely on the survey results as being instructive of how the reasonable consumer understands the phrase Nature Fusion in the context of the products. As in Becerra, the survey here does not adequately address the primary question in this case.
Rather than demonstrating that the phrase Nature Fusion is misleading, the survey results confirm that it is ambiguous. Looking only at the front labеl, survey respondents were split nearly 50/50 on the question of whether the products contain a mixture of natural and non-natural ingredients, or if they instead contain all or substantially all natural ingredients. Given that ambiguity, the survey is not informative as to whether the labeling of the products is misleading as a whole. Had the survey participants had access to the products’ back labels, they would have had an immediate answer to this question—they could see that the products contain avocado oil, a natural ingredient, as well as many synthetic ingredients. Although a back label cannot contradict deceptive statements made on the front label, the back label can be used to interpret what is conveyed by the labeling when the front label is ambiguous, as here. With the entire product in hand, we conclude, no reasonable consumer would think that the products were either completely or substantially natural. The survey results do not make plausible the allegation that the phrase Nature Fusion is misleading.
As shown by both Becerra and this case, it is important that potential or current litigants draft questions for consumer surveys
Food Labeling Claims, 35 Loy. Consumer L. Rev. 82, 135 (2023).
IV. CONCLUSION
We affirm the decision of the district court dismissing McGinity’s claims for failure to state a claim under
AFFIRMED.
GOULD, Circuit Judge, joined by BERZON, Circuit Judge, concurring:
Although we hold that McGinity has not successfully shown that P&G’s Nature Fusion labeling is deceptive as a matter of law, I write separately to express my view that P&G’s labeling nonetheless resembles a concerning practice known as greenwashing. Greenwashing refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact or attributes of a product[.] Amanda Shanor & Sarah E. Light, Greenwashing and the First Amendment, 122 Colum. L. Rev. 2033, 2037 (2022); see also id. at 2056-57. The practice of greenwashing has resulted from the increasing number of American consumers who want to buy environmentally friendly, or green, products. See
Greenwashing is not limited to environmental effects and is also used to describe the misleading or false labeling
of a wide range of consumer products.1 For example, the practice of greenwashing also affects the way consumers buy cosmetic and personal products. Alexa Riccolo, The Lack of Regulation in Preventing Greenwashing of Cosmetics in the U.S., 47 J. Legis. 120, 122 (2021). In the context of cosmetics and personal care products (e.g., shampoos and conditioners), the term is used to describe products that have natural labeling but actually contain chemicals[.] Id.
The Federal Trade Commission issued the Green Guides to help companies avoid making misleading environmental clаims. The Green Guides 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. See
Here, although there is only one natural ingredient in the products, the word Nature is in bold, capitalized text on the front labels and is one of the largest words on the bottles, second only to the brand name, Pantene. As a consumer hoping to purchase natural personal care products, McGinity was drawn to the emphasis on Nature and thought that the labeling meant that the products were of, by, and from ‘Nature.’ McGinity alleges that Nature Fusion conveyed to him that the products were made of predominantly natural ingredients when they were, in fact, made of almost entirely synthetic ingredients. 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.