omitting serving size on package front may mislead if dosage suggests per-gummy dose

Tarvin v. Olly Pub. Ben. Corp., 2024 WL 4866271, --- F.Supp.3d ----, No. 2:24-cv-06261-WLH-PD (C.D. Cal. Nov. 12, 2024)

Olly makes dietary supplements, e.g., “Sleep Extra Strength Melatonin 5 mg.” Each product includes the dosage amount and the net quantity of units per container on its front label. But, unlike some other brands, Olly Products do not state the serving size on the front label or that the dosage amount is per serving. Serving size and servings per container information is on the back label. This means that a consumer must ingest two units of gummies of Olly Extra Strength Sleep Product, rather than one, to obtain the 5 mg of melatonin that is advertised on the product’s front label. Tarvin brought the usual California statutory and other claims.

Statutory claims: Would a reasonable consumer have consulted the back label? This wasn’t the rare situation in which the claim could be dismissed on the pleadings. In addition to the labels themselves, Tarvin pled images of competitor labels as points of comparison to demonstrate “appropriate labeling conduct” and establish the expectations of a reasonable consumer. Misleadingness was plausible.

Olly argued that the labels were at most ambiguous, and that consumers are required to consult the back in cases of ambiguity. But a front label may be “unambiguously deceptive” for Rule 12(b)(6) purposes “even if it has two possible meanings, so long as the plaintiff has plausibly alleged that are reasonable consumer would view the label as having one unambiguous (and deceptive) meaning.” Representation of dosage amount on the front label without qualifying serving information may be considered “unambiguously deceptive” on a motion to dismiss.

Warranty claims, however, failed for want of an unequivocal promise that the dosage was per gummy. Likewise, negligent and intentional misrepresentation claims failed, because they required actual falsity: a “perfectly true statement couched in such a manner that is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information” may be actionable under consumer protection statutes but not common law fraud.