If an advertiser includes a claim on the front of packaging, but puts the qualifying language on the back, will that disclaimer be effective? This was the issue in a case decided in December that I've been meeting to blog about since then. And, since the case involves sunscreen, and I'm headed out tomorrow morning to speak about the effectiveness of disclosures at the Consumer Brands Association CPG Legal Forum in Los Angeles (where hopefully I'll need sunscreen), this seemed like a great time to do so.
This case involves a number of different foundation products sold by L'Oreal that are promoted on the front of the packaging as lasting up to twenty-four hours. The front of the packaging also promotes the fact that the foundation includes sunscreen (but the sunscreen doesn't last all day). The issue in the case, then, is whether consumers will think that the "up to 24 hr" foundation claim applies to sun protection as well.
The plaintiffs alleged false advertising and other claims under California law. The plaintiffs alleged that the "up to 24 hr" claims misled them into believing that these products provided twenty-four hours of sunscreen protection. Whether a claim is misleading is governed by the "reasonable consumer" standard. This means that the plaintiffs must show that "members of the public are likely to be deceived." And, you can't just show that a few people are deceived. Instead, the question is whether "it is probable that a significant promotion of the general consumer public or of targeted consumers, acting reasonably in the circumstances, could be misled."
Moreover, in the Ninth Circuit, where a claim on the front of the packaging is ambiguous, "the ambiguity can be resolved by reference to the back label." In other words, if the meaning of the claim is clear, consumers have no reason to turn over the package to learn more. On the other hand, if the claim is ambiguous, "a reasonable consumer would consider all of the information available at the time of purchase, including the back labels."
Here, the court held that the "up to 24 hr" claim was ambiguous. So, the question – at the motion to dismiss stage – was whether this ambiguity was resolved by the language on the back of the packaging. The case actually involved several different plaintiffs, who bought several different products, but I want to focus on two of the plaintiffs in particular.
One consumer bought "Lancome Teint Idole Ultra 24H Long Wear Matte Foundation." The back label of the product clearly explains that, for sunscreen use, consumers must reapply it every two hours. The court held that this information resolved any ambiguity about the statement and dismissed this consumers' claim.
Another consumer bought "L'Oreal Infallible Pro-Glo Foundation" which also made a similar twenty-four hour claim. The back label of the product also explained that, for sunscreen protection, it needed to be reapplied every two hours. On this packaging, however, the instruction was included under a peel-back sticker which was "not immediately visible to consumers at the time of purchase." The court held, therefore, that it could not conclude as a matter of law "that a reasonable consumer would peel back the label in the store, before purchasing the product, to find and read these instructions."
What are some important take-aways here?
First off, it's always going to be better to ensure that the claims you make on the front of your packaging are clear and are not subject to misinterpretation – since advertisers are generally responsible for all reasonable interpretations of their claims. If you think that the claim may be misunderstood, it's best to revise your claim to correct the ambiguity.
If you can't revise the claim, then it's best to include the necessary qualifying language in close proximity to the claim. The more prominent a disclaimer is, the more likely it is that it will be effective.
If you're going to include your qualifying language on the back, you'd better hope that the court finds that your front-of-package-claim is ambiguous, and that the court believes that you've adequately cleared things up on the back in a way that consumers will understand.
And, whatever you do, don't include your qualifying language in a peel-back label – since you're likely to have an uphill battle convincing a court that reasonable consumers will see it.
Zimmerman v. L'Oreal USA, 2023 WL 8587620 (N.D. Cal. 2023).
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