"2x Omega" that wasn't 2x the regular product was plausibly misleading

Caldwell v. Nordic Naturals, Inc., 2024 WL 24325, No. 23-cv-02818-EMC (N.D. Cal. Jan. 2, 2024)

Caldwell alleged that the dietary supplement product “Ultimate® Omega 2X” misled consumers into thinking that there is double the amount of omega-3  per serving than the amount of omega in the Nordic Naturals product named “Ultimate® Omega.” The court kicked out quasi-contract, unjust enrichment, and restitution claims with leave to amend and claims for injunctive relief without leave to amend, but otherwise sustained the basic consumer protection theory.

Ultimate Omega contains 1280 mg of omega per serving, while Ultimate Omega 2X contains 2150 mg, not 2560 mg of omega. Nordic argued that Caldwell’s claims failed because the product label states on the front, in bold letters, that the contains 2150 mg of omega.

The packages

The court summarized the relevant principles:

Where the label of a product is ambiguous, meaning a reasonable consumer would realize the label could have more than one meaning, the court should consider other information available to the consumer aside from the label to determine if a reasonable consumer would be misled. To this end, a consumer might be expected to consider information on the back label of the product; common consumer knowledge and price of the product is also relevant to the analysis. On the other hand, where the front of the product creates more than mere ambiguity, but instead misleads a consumer into thinking one thing (i.e., that the product contained snacks made of fruit juice) that in fact is not true, the consumer is not required to dig through the other information (including the back label) to dispel that falsity. Otherwise, companies would be allowed to mislead a consumer into thinking one thing is true about the product, while shielding the company from liability through fine print.

Here, the front label was plausibly misleading, not just ambiguous, based on the commonly understood meaning of “2X.” The mg disclosure on the front label didn’t change the issue: Caldwell argued not that she believed the product contained more than 2150 mg of omega, but that she was under the impression that the amount of omega in the 2X product equated to two times the amount included in the original product. The 2150 mg label “does nothing to clarify whether the product is two times stronger than the original product on its face. Rather, the truth can only be learned by viewing the 2150 mg amount in relation to the contents of the original product – an entirely separate product with its own label.”

The addition of the phrases “Next Generation Fish Oil,” and “More Powerful. Naturally.” on the front label was “consistent with the interpretation that the product is two times the potency of the original product.” Indeed, Nordic didn’t offer its own intention about what 2X was supposed to mean, if not twice the potency, only suggesting that it could mean “next generation.” The court found this “hardly convincing” and certainly not enough to render misleadingness implausible.

“The label at issue does not include the sort of inherent ambiguity which might put a consumer on notice to investigate the meaning of the label further.” “2X” “commonly and clearly” denotes “two times.” Moreover, the additional information that could be investigated (that two times the omega of the original amounts to 2560 mg and not 2150 mg) “is contradictory to and not a mere clarification of an ambiguity in the front label.” Nor would reviewing the back label have helped. A reasonable consumer is not required to cross-check a different product label “under these circumstances if at all,” especially when that would require doing math. “Unlike cross-referencing the back label of a product, it is not clear if another product will be available for inspection at time of purchase—rendering it less appropriate for a consumer to be expected to reference that label.”

Finally, the court declined to dismiss a nationwide class at this stage. Nordic is a corporation with its principal place of business in California, shifting the burden to it to show, under California’s choice of law rules, why California law should not apply to her nationwide claims. This it had not (yet) done.