ambiguous front label cured by clear back label for fish oil

Foster v. Whole Foods Market Group, Inc., No. 22-cv-01240 (ERK) (RML), 2023 WL 1766167 (E.D.N.Y. Feb. 3, 2023)

Foster alleged that the front label of WFM’s branded Fish Oil softgel product was false and deceptive because it suggests to a reasonable consumer that the Product contains 1000mg of two types of Omega-3s—EPA and DHA—per capsule, when in fact it contains only 300mg of Omega-3s per capsule.

front of bottle: "Omega-3s EPA & DHA/1000mg Per Serving/From Small Cold-Water Fish/Molecularly Distilled"

The court found he failed to state a claim.

Foster argued that “1000mg Per Serving” was false and misleading because it appears underneath “Omega-3s EPA and & DHA,” while it actually contains 1000mg of Fish Oil, 180mg of EPA, and 120mg of DHA.

back label disclosing DHA and EPA amounts

The court found that the front label was arguably ambiguous, but any ambiguity was readily resolved by the back label. It wouldn’t be unreasonable for a consumer to read the “1000mg Per Serving” statement on the front label as qualifying the “Omega-3s EPA & DPA” statement above it, and then to read the two additional statements below as independent qualities of the product. In a footnote, the court stated that, if “1000mg Per Serving” appeared below “Fish Oil” (but above “Omega-3s EPA & DHA”), it would not have been ambiguous—it seems to me that the availability of an easy fix should bear on the misleadingness inquiry.

However, “clarification can defeat [a] claim” for deceptive packaging if a front label contains an ambiguous representation, although it can’t correct an unambiguously misleading representation. Here, there was ambiguity. [I gotta admit, I have no idea what is going on with “ambiguously misleading” and “unambiguously misleading”—it doesn’t seem to be the same as falsity by necessary implication, so I guess we just have a new ad hoc standard now.] This was distinguishable from the leading Second Circuit case, Mantikas, where the front label “falsely impl[ied] that the grain content is entirely or at least predominantly whole grain,” and that the back label did not provide any information as to the actual “ratio of whole grain to white flour.”

On the spectrum, this was ambiguous, not misleading. [How do you know, other than by measuring consumer reaction? What is the difference between an ambiguous claim that is misinterpreted by a substantial number of reasonable consumers and one that is misleading?]