The United States Court of Appeals for the Ninth Circuit (Ninth Circuit) recently held in Whiteside v. Kimberly Clark Corp., No. 23-55581 (July 17, 2024) that when a front label of a product is unambiguous, a manufacturer is precluded from relying on the back label to remedy any potential ambiguity. In this decision, the Ninth Circuit followed up on its prior decisions to clarify when a front label is ambiguous and, furthermore, when qualifying statements can be used to ameliorate ambiguity. 

The Ninth Circuit recently held in McGinity v. Proctor & Gamble Co., 69 F.4th 1093, 1999 (9th Cir. 2023) that when a front label is ambiguous, the ambiguity can be resolved by reference to the back label. McGinity further held a plaintiff must plausibly allege that the front label would be unambiguously deceptive to an ordinary consumer, such that the consumer would feel no need to look at the back label.

In Whiteside, the plaintiff alleged the defendant’s baby wipes label containing the claims “natural care” and “plant-based” were misleading in violation of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. One set of products contained an asterisk following “plant-based,” containing the qualifying statement “*70+% by weight” on the front label, while the other set of products did not contain an asterisk. As to the Unasterisked Products, the court concluded the plaintiff plausibly alleged a reasonable consumer could interpret the front label as unambiguously representing that the Products do not contain synthetic materials, and thus, a reasonable consumer would not necessarily require more information from the back label to reach this conclusion. The court further clarified that a front label is not ambiguous simply because it is susceptible to two possible meanings; a front label is ambiguous when reasonable consumers would necessarily require more information before reasonably concluding that the label is making a particular representation, and only in these circumstances can the back label be considered at the dismissal stage. The court distinguished the baby wipes’ “plant-based” claim from McGinity’s “Nature Fusion” claim, noting that “plant-based” connotes to consumers that a product is entirely plant-based and contains natural materials, unlike “Nature Fusion,” an “all-but-meaningless marketing term.” 

As to the Asterisks Product, the court held the asterisk and qualifying, along with the back label ingredient list, ameliorated any tendency to mislead, and accordingly, the district court properly dismissed these claims under California law.