The Mantikas Decision
In Mantikas, residents of New York and California filed a class action complaint in the U.S. District Court for the Eastern District of New York against the Kellogg Company, contending that they were misled by the packaging of whole grain Cheez-It crackers. Specifically, they alleged that the statements “whole grain” and “made with whole grain,” appearing on the front label of the product, led them to believe that the grain in the crackers was predominantly whole grain, when it was actually enriched white flour.
Kellogg moved to dismiss. It argued that the “whole grain” statements were factually accurate because the crackers did in fact contain whole grain. Further, the “Nutrition Facts” panel on the box disclosed that the crackers contained both whole wheat flour and enriched white flour and, by identifying enriched white flour as the first ingredient, effectively disclosed that there was more enriched white flour than whole wheat flour. The bottom of the front label also expressly qualified the “whole grain” statement by stating, “Made with 8g of whole grain per serving.” Id. at 634. Insofar as the Nutrition Facts panel identified a serving size as 29 grams, Kellogg argued, the relative portion of whole grain contained in each cracker should be apparent to the reasonable consumer.
The district court granted Kellogg’s motion to dismiss, concluding that a reasonable consumer would not be misled by the “whole grain” statements on the front label because they were true and because the additional information on the label was sufficient to dispel any confusion about the amount of whole grain in each cracker.
The Second Circuit reversed. While acknowledging that a misleading statement on a product label can in some cases be cured by additional information on the label, the court concluded that the “8g of whole grain per serving” disclaimer was insufficient to prevent the reasonable consumer from being misled into thinking that the predominant grain in each cracker was whole grain. The reasonable consumer could understand from the disclaimer that there were 8 grams of whole grain per serving and understand from the Nutrition Facts panel that each serving contained 29 grams but still believe that whole grain was the predominant grain. “Such serving size information clarifies the amount of whole grain as a portion of a total serving,” the court reasoned, “but it does not indicate the ratio of whole grain to white flour.” Id. at 637. As to Kellogg’s claim that the reasonable consumer would know there was more white flour than whole grain based on the fact that white flour was identified first in the ingredients list, the court concluded that the reasonable consumer “should not be expected to consult the Nutrition Facts panel on the side of the box to correct misleading information set forth in large bold type on the front of the box.” Id. Finally, the court rejected a rule proposed by Kellogg—that, as a matter of law, it is not misleading to state that a product is made with a specified ingredient if that ingredient is in fact present. The court reasoned that such a rule would permit Kellogg to identify its Cheez-Its as “whole grain” if there were even “an iota” of whole grain present, and would thereby “validate highly deceptive marketing.” Id. at 638.
The matter was therefore remanded to the district court, and the claims were ultimately resolved through settlement.
The Wake of Mantikas
In the six years following Mantikas, district courts in the Second Circuit have reached surprising and, in some cases, divergent conclusions in determining whether the Mantikas version of the reasonable consumer would be misled by particular product labels.
The first principle that has emerged in the post-Mantikas case law is that the reasonable consumer is more likely to be misled regarding a primary ingredient than a secondary ingredient. The seed for this principle was planted in Mantikas, wherein the Second Circuit drew a distinction between a representation about the amount of grain in a cracker and a representation about a secondary ingredient like vegetables. Since the reasonable consumer knows that a cracker is made predominantly with grain, he is more likely to believe that a cracker that is “made with whole grain” is predominantly comprised of whole grain. This would not be true for a secondary ingredient like vegetables, or so the Mantikas court reasoned. This principle was applied two years later in Kennedy v. Mondelez Global LLC, wherein a district court rejected a deceptive labeling claim asserted against the manufacturer of Honey Maid graham crackers, in part because honey is not the primary ingredient of graham crackers and the reasonable consumer would therefore not infer from a “made with honey” representation that the graham cracker was made predominantly with honey. Kennedy, No. 19 Civ. 302, 2020 WL 4006197, at *13 (E.D.N.Y. July 10, 2020). More recently, however, district courts have resisted attempts to create a bright-line rule on this point. In a 2024 decision from the U.S. District Court for the Southern District of New York involving Cheddar Cheese Combos, the district court concluded that the reasonable consumer may still be misled about secondary ingredients (in that case, cheese). Frias v. Mars Wrigley Confectionary US LLC, No. 23 Civ. 4422, 2024 WL 3988667 (S.D.N.Y. Aug. 28, 2024).
A second principle that has emerged is that a disclosure on the front label of the exact proportion of an advertised ingredient in each serving may prevent the reasonable consumer from being misled. In Mantikas, the Second Circuit concluded that the reasonable consumer, despite knowing specifically that whole grain accounted for 8 out of the 29 grams in each serving, could still be misled into believing that whole grain was the predominant grain, insofar as nothing on the front label disclosed the proportion of grain in each serving. In contrast, in Kennedy, where the plaintiff alleged that identification of crackers as “grahams” would mislead the reasonable consumer into believing that the crackers contained more graham (i.e., whole wheat) flour than white flour, the district court rejected the claim in part because the front label stated “8g of whole grain per 31g serving.” Kennedy, 2020 WL 4006197, at *11. The Kennedy court reasoned as follows: “Using a specific measure for the serving size, 31 grams, makes clear that 23 other grams are something else and leaves no room for the consumer to think there is any more whole grain content than the eight grams listed.” Id. In other words, whereas Mantikas concluded that the reasonable consumer must know the exact proportions of whole grain relative to white flour in each serving in order to not be misled about the whole grain content, Kennedy concluded that it was enough for the reasonable consumer to know the proportion of whole grain in each serving.
A third principle is that if an ambiguous statement on the front label is explained by additional information on the back label, and that additional information is prominent and accurate, then the reasonable consumer is unlikely to be misled. This third principle is rooted in the concept, endorsed in Mantikas, that an allegedly deceptive label must be viewed “as a whole.” Mantikas, 910 F.3d at 636. If additional detail regarding a front-of-the-box representation is contained elsewhere on the box, that information factors into the analysis of whether the reasonable consumer would be misled. However, if the front-of-the-box representation is truly “misleading” and not just ambiguous, then the reasonable consumer should not be expected to look to the back of the box to discover the truth. Applying this principle in Mantikas, the court concluded that the reasonable consumer should not be expected to consult the Nutrition Facts panel to discern that the serving size of Whole Grain Cheez-It crackers is 29 grams, in order to compare that against the 8 grams of whole grain and discern that the crackers are comprised mostly of ingredients that are not whole grain.
Subsequent case law has built upon Mantikas’s admonition that these “back-label” disclosures must be prominent and accurate to adequately dispel confusion. In Henry v. Campbell Soup Co., the plaintiff challenged the label of Swanson Chicken Broth, which stated in large, bold font: “No MSG Added.” No. 22-CV-431, 2023 WL 2734778, at *1 (E.D.N.Y. Mar. 31, 2023). Adjacent to that statement, in a smaller font, the label stated: “Small Amount of Glutamate Occurs Naturally in Yeast Extract.” Id. MSG is a form of glutamate, and the plaintiff alleged that she was misled by the “No MSG Added” statement into believing that the product contained no glutamates of any kind. The Henry court rejected the claim, concluding that the disclaimer provided additional information to clarify any ambiguity resulting from the front-of-the-can representation (i.e., no MSG is added, but small amounts of glutamates naturally occur in other ingredients). Moreover, although the font of the disclaimer language was smaller, it was capitalized, bolded, and in a contrasting color—and therefore noticeable by the reasonable consumer.
On the other hand, in Frias, the recent decision involving Cheddar Cheese Combos, the district court determined that the back-label disclosures were insufficient to dispel confusion created by the front label. In that case, the plaintiffs argued that they were misled by the product label, which stated that the filling was “made with real cheese” and contained an image of a block of cheddar cheese. Frias, 2024 WL 3988667, at *1. Although the filling did contain cheddar cheese, it primarily contained vegetable fats and cheese by-products. The manufacturer argued that any ambiguity was cured by the ingredients list on the back label, which showed that there was a greater amount of vegetable fats and cheese by-products than cheddar cheese in each serving. The district court rejected this argument, concluding that the “fine-print disclosure” regarding the ingredients did “not cure the relatively prominent advertisement” on the front label regarding “real cheese.” Id. at *4.
The post-Mantikas reasonable consumer is, in short, a person you want to avoid at a party. Reasonable consumers know the difference between various types of flour—white, whole grain, graham—and have a strong preference for which type is contained in the products they consume. But don’t ask them to review the Nutrition Facts panel on the back of the box to discern the exact ingredients that are contained in a product, conveniently listed in the order of predominance. And don’t try to tell them the proportion of their favorite ingredient that is contained in each serving—e.g., 8 grams per 29 gram serving—because it’s possible they’d rather know how much of that ingredient is included relative to another ingredient. And finally, don’t assume that their interest in the composition of food will cause them to read text about that food that is displayed on the label of the food. They can’t be bothered to read that text unless it’s capitalized, bolded, and in a contrasting color.
Ninth Circuit Approach
The Ninth Circuit also applies a “reasonable consumer” standard in analyzing deceptive labeling claims brought under the consumer protection statutes of its states (including California and eight others). Its approach is, in many respects, the same as the Second Circuit approach—that is, a plaintiff must show a probability that a reasonable customer would be misled; the package is considered in its entirety (front label and back); and back-label disclosures may, but will not always, fix a front-label problem. But the Ninth Circuit approach to back-label disclosures is far more straightforward and, in turn, more easily applied.
In Whiteside v. Kimberly Clark Corp., the Ninth Circuit summarized its approach to motions to dismiss deceptive labeling claims. 108 F.4th 771 (9th Cir. 2024). First, a court considers whether the front label is “plausibly misleading” or merely ambiguous. Id. at 778. If the front label is plausibly misleading, then the court does not consider the back label on a motion to dismiss (though the ultimate fact finder may, at a later stage, consider the back label in assessing the merits of the claim). If the front label is ambiguous, then the court will consider the back label and assess whether it clarifies the ambiguity such that it eliminates the possibility that the reasonable consumer will be misled. To determine the difference between a label that is misleading and one that is ambiguous, the court asks whether the reasonable consumer would necessarily require more information before concluding that the label is making a particular representation. If so, the label is ambiguous. If not, and there is something inaccurate about the front-label representation, then it is misleading.
Application of this approach is well illustrated in McGinity v. Procter & Gamble Co., an earlier decision from the Ninth Circuit. 69 F.4th 1093 (9th Cir. 2023). In that case, the plaintiff argued that the front label of Pantene Pro-V Nature Fusion Shampoo, which featured an image of an avocado on a green leaf, was deceptive because it suggested that the product was “natural” even though it was made with synthetic ingredients. Id. at 1099. The court concluded that the front label was ambiguous because it could mean that the shampoo was made up fully or partially of natural ingredients. A reasonable consumer would require more information to understand if an “all-natural” representation was intended. Id. at 1097. The court therefore turned to the back label and, finding that the ingredients list identified synthetic ingredients that no reasonable consumer would believe to be natural, determined that a reasonable consumer would not be misled by the label of the shampoo.
In contrast, in Whiteside, the plaintiff argued that Huggies Natural Care Baby Wipes, which contained the statement “plant-based” alongside nature-themed imagery on the front label, misled her into believing that the wipes contained only natural ingredients and were not subject to chemical modification or processing. Whiteside, 108 F.4th at 774. The court determined that the front label plausibly conveyed a concrete and unambiguous representation to the customer that the product was entirely plant-based and contained only natural materials. Because the front label representation was misleading rather than ambiguous, the back label was not considered, and the defendant’s motion to dismiss was denied.
The Ninth Circuit approach, were it to be applied in the Second Circuit cases discussed in the preceding section, would do a better job of eliminating frivolous claims. For example, in Mantikas, the “whole grain” statements on the front label of the Cheez-Its were, at worst, ambiguous—i.e., a reasonable consumer would need additional information to determine whether the intended representation was that the Cheez-Its were made with more whole grain than white flour. This would allow the court to consider the back-label disclosure, including the Nutrition Facts panel, which clarifies any ambiguity regarding the grain composition by clearly indicating that there is more white flour than whole grain. Kellogg’s motion to dismiss would therefore likely have been granted in the Ninth Circuit. Similarly, in Frias, the “made with real cheese” representation on the front label of the Cheddar Cheese Combos is more fairly characterized as ambiguous than misleading—i.e., a reasonable consumer would need additional information to determine whether the intended representation was that the product was filled exclusively with real cheese. Consideration of the back-label disclosure—i.e., the Nutrition Facts panel showing that there was a greater amount of vegetable fats and cheese by-products than real cheese in the filling—would clarify the ambiguity, eliminate any likelihood that the reasonable consumer would be misled, and allow for dismissal of the claim.
Conclusion
Consumer protection statutes, including the false-advertising statutes under which deceptive labeling claims are typically brought, are a necessary tool for holding unscrupulous businesses accountable for intentionally deceptive conduct toward customers, and for providing redress to those customers who are legitimately deceived by such misconduct. But, as is the case with much well-intentioned legislation, these statutes are susceptible to exploitation by unscrupulous litigants and attorneys more interested in extracting settlements from large corporations than protecting the public at large. To push back against such exploitation, courts must be empowered to assume gatekeeping responsibility by granting motions to dismiss deceptive labeling claims that are plainly frivolous. The Mantikas approach has created confusion and inconsistency regarding the circumstances in which deceptive labeling claims can be dismissed, which hinders the ability of courts to grant meritorious motions to dismiss and rewards frivolous litigation to the detriment of blameless businesses. The Ninth Circuit approach, which sets clearer standards for assessing deceptive labeling claims, does a better job of striking this important balance.
