"Target Clean" might certify specific qualities to reasonable consumers

Boyd v. Target Corp., --- F.Supp.3d ----, 2024 WL 4287669, No. 23-CV-02668 (KMM/DJF) (D. Minn. Sept. 25, 2024)

This interesting lawsuit relies on Target’s curatorial reputation for the false advertising claim. Target is headquartered in Minnesota and plaintiffs sought to represent a putative nationwide class over certain products labeled “Target Clean.” Target allegedly represents that the labeled products are “clean” because they are “free from ‘commonly unwanted’ chemicals or ingredients” and “ ‘formulated without ingredients [consumers] may not want.’ ” The labeling is allegedly independent of manufacturer claims, and at least some Target Clean products are not labeled or marked with a similar claim or description by the manufacturer.

example of Target Clean store sign

Target allegedly uses a bright green hexagon within which is Target’s typical “bullseye” logo and the word “clean.” Sometimes it’s on individual shelf labels associated with particular products, and also on larger display signs that offer a short explanation of the Target Clean program including a brief explanation of Target’s criteria, as well as on a website. It has identified 13 ingredients as being “banned” from Target Clean Beauty Products. The complaint has details about the alleged harms of these ingredients; generally, they allegedly have “known impacts on human health and the environment.”

Target allegedly designed and describes the Target Clean program as a shopping assistant for health-conscious consumers. A Target merchandise executive allegedly described the program as “tak[ing] the complications out of finding better-for-you product options,” conveying to the consumer that Target has done that work for them. However, plaintiffs alleged that some products do contain the banned ingredients, and that others contain ingredients that are equally or more harmful to humans than the banned ingredients.

Plaintiffs alleged common law breach of warranty, express and implied; common law fraud; negligent misrepresentation; violations of the Minnesota Consumer Fraud Act and Minnesota Uniform Deceptive Trade Practices Act; and violations of Alabama, Arizona, California, Colorado, Florida, Illinois, Indiana, Michigan, New Hampshire, New York, Oklahoma, and Washington consumer fraud and protection statutes (on behalf of putative state subclasses).

Notes of interest: Target argued that exact purchase dates, not just year and month, were required to plead fraud with particularity; the court disagreed:

While the Court can certainly envision a scenario in which specific-date allegations are key to providing notice, this is not such a case. For one, the Court is unpersuaded that individual purchase dates are the relevant “when” in this matter, at all. Plaintiffs do not allege discrete acts of deceit or fraud where Target’s purported misrepresentations were unique to individual purchases on different dates. Instead, Plaintiffs allege that Target Clean has induced sales through misleading claims throughout the program’s entire existence. The fact that this allegation is broad does not mean that it fails to provide notice to Target as to “when” the fraud allegedly occurred. Moreover, as alleged in the Complaint, the period in which Target made its misrepresentations is not particularly long. According to the Complaint, the Target Clean program was launched in 2019 and continues to this day. This provides a “when” window of no more than four years at the time of the filing of the Complaint.

The real issue of interest is the reasonable consumer standard. Although the court was somewhat dubious, the early stage of the case allowed the claim to proceed. Certainly the allegation that at least one product literally contained an ingredient on the banned ingredients list had to be accepted.

The court was more sympathetic to Target’s arguments that “reasonable consumers would view Target’s posted definitions” to better inform themselves about what the program does and does not claim and that “clean” lacks any “accepted meaning [and] is too subjective and vague and wholly dependent on an individual’s interpretation, and lacks an empirical benchmark to provide any indicia of measurability to create a basis for a lawsuit ... based on reasonable consumer confusion.” But factual development was still required. “Clean” was something of a moving target—plaintiffs alleged meanings related to health; Target argued that Target Clean was a “proprietary” term and therefore meaningless puffery, “embodying only its own exact terms and conditions and communicating nothing more.”

At this stage, the court would not resolve the issue in Target’s favor. “Target’s own case law suggests that ‘clean’ is being used in cosmetics sales widely, and has at least some kind of consistent meaning apart from whatever proprietary meaning Target wishes to assign to it.” Moreover, “Target’s dependence on an idealized scenario of clear explanation and disclosure about its own definition of Target Clean ignores Plaintiffs’ second-order assertions about the Target Clean program—namely, that the program’s definitions about itself are confusing and inconsistent.” Finally, “Target’s position requires far too much assumption about what a Target Clean consumer would have reasonably encountered or been told about this program at the time of their purchases.”

The court noted that the last point made this case “unique” compared to other facially similar cases:

Many of the cases cited by Target dismissing consumer fraud actions can be fairly characterized as “product cases,” meaning that a plaintiff has sued the manufacturer of a product for the representations made about (and often literally on) that product. In this relatively closed universe—featuring a directly proprietary representation about a product, typically capable of being immediately verified or at least scrutinized by the consumer—it makes more sense for a court to render early legal conclusions about who the reasonable consumer is and what they have perceived. But the situation presented in this case is much murkier because this is not a typical products case. This is a case about a well-known national retailer alleged to have independently curated a selection of products and then presented those products to the consumer as being “Target Clean” through at least several variations of representations. The central allegation presented is that the Target Clean program itself is inherently deceptive, not merely any one claim about any one product. In other words, by representing Target Clean as a neutral tool to help consumers, Target is alleged to have used an imprimatur of authority, as a retailer, to point health-conscious consumers toward purchasing certain products.

Given this “broader Target marketing landscape,” plaintiffs were entitled to more expansive inferences about reasonable consumers. “[W]hile all of these positive representations about products communicate to the consumer that someone would like to sell them something, only Target’s representation that a product is ‘Target Clean’ suggests that Target has done some work on their behalf”:

The independent curation also effectively removes another key basis on which consumer deception cases are dismissed under Rule 12: that a reasonable consumer understands the concept of commercial puffery and knows they must verify the claims made about products. This caveat emptor logic does not squarely apply here. It is one thing to assume that a consumer expects a shampoo manufacturer to promote its own products by any means necessary, and therefore require that consumer, as a matter of law, to verify package labeling for abject dishonesty before claiming to have been deceived. But it is another thing to assume what a consumer reasonably expects when Target positions itself between the manufacturer’s label and the consumer, promoting certain products on its shelves over others as embodying certain standards. Here, the typical sales motivations are altered, and indeed, at this stage the Court can imagine that a consumer might reasonably assume that Target had independently made an assessment that some of its products are cleaner than others in a way that is meaningful to its customers. What follows from such an assumption (e.g., whether a reasonable consumer would feel that Target had relieved them of the need to verify claims or whether the reasonable consumer would view Target’s independent representations as being no more trustworthy than those of the shampoo maker) remains opaque to the Court. But assuming as true Plaintiffs’ well-pleaded allegation that Target Clean products are not actually “cleaner” than others, that opacity forecloses a quick dismissal on the merits of Plaintiffs’ fraud-based claims.

What about the next step in the chain of logic—that the Target Clean program allows ingredients that are just as harmful as the “banned ingredients”? “Plaintiffs implicitly suggest that a reasonable consumer would understand the representation as identifying banned ingredients by kind rather than with literal specificity.” That is, that “propylparaben is a banned ingredient because it is a harmful endocrine disruptor, and not merely that propylparaben is a banned ingredient.” Target argued that “the list of banned ingredients speaks for itself and cannot impart any representation other than its own, plain terms.” The court found this to be Target’s strongest argument, but not on a motion to dismiss. (FWIW, I think it’s an incredibly weak argument—the basic rules of implicature suggest that these ingredients are banned for a reason, and the reason is that they’re bad for you; banning ingredients that are bad for you while allowing others that are just as bad for you for the very same reasons that the banned ones are bad for you is silly and counterintuitive.)

[T]he difference between the representations and expectations alleged in the Complaint is not one of apples and oranges. Furthermore, as discussed above, Target is alleged to have made statements about the Target Clean program that arguably encourage broader expectations than Target is willing to concede can arise out of the fine print. Indeed, there is a fairly straight line between the alleged representation that Target Clean products are “formulated without a group of commonly unwanted chemicals” or “formulated without ingredients they may not want” and Plaintiffs’ assertion that a reasonable consumer broadly expects Target Clean products to “be safe and good for humans.”

The court also found the reasonableness of plaintiffs position strengthened by the reference to the FTC’s Guides for the Use of Environmental Marketing Claims (Green Guides), which state that “a truthful claim that a product, package, or service is free of, or does not contain or use, a substance may nevertheless be deceptive if: [ ] the product, package, or service contains or uses substances that pose the same or similar environmental risks as the substance that is not present.”

I won’t mention most of the other claim-specific issues, but Target sought to strike class allegations arising under Alabama’s Deceptive Trade Practice’s Act (ADTPA) because of a limitation written into the statute by the Alabama legislature that purports to ban the formation of class actions:

A consumer or other person bringing an action under this chapter may not bring an action on behalf of a class. The limitation in this subsection is a substantive limitation and allowing a consumer or other person to bring a class action or other representative action for a violation of this chapter would abridge, enlarge, or modify the substantive rights created by this chapter.

But Rule 23 governs the formation of classes in federal litigation. Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), as applied by the Eleventh Circuit to Alabama’s law, Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015), rejected the claim that Alabama’s statutory ban on class action formation under the ADPTA implicated any substantive right (against deceptive conduct) as a matter of federal law. “The State of Alabama may organize consumer lawsuits in its own courts differently, but cannot impose those preferences on the federal courts. … [T]he nuanced analysis required under the Rules Enabling Act, as guided by Shady Grove, does not hinge on whether a state simply says that a given law does or does not implicate a substantive right.”]