asterisk alone makes front of package claims ambiguous

Wong v. Iovate Health Sciences U.S.A. Inc., 2025 WL 821451, No. 2:24-cv-00901-DAD-CKD

(E.D. Cal. Mar. 14, 2025)

Is an asterisk on the front of a package a get-out-of-jail-free card for false advertising? If the disclosure doesn’t flatly contradict the claim, at least, maybe it is. (I would think that evidence of what reasonable consumers thought they might learn from the asterisk is quite relevant for that—if they didn’t realize they needed to consult the qualification, then they could still be deceived—but that’s not what this court holds, even though there are allegations that other marketplace participants advertise differently and less deceptively.)

front and back panels from complaint

Wong bought “100% Mass Gainer,” a dietary supplement in the form of a protein powder, which stated that the supplement provided 60 grams of protein per serving. But, without adding milk, the supplement contained only 44 grams of protein per serving rather than 60 grams. The rest of the product line also has fewer grams of protein in a serving than what is stated on the front label of the packaging because they all require the consumer to add some quantity of milk. “Other protein powders not produced by defendant have packaging that prominently advertises the amount of protein contained within a serving of the powder, but only include the protein content from the powder itself.”

There’s a disclaimer that the protein content assumes the addition of milk, “though those disclaimers and the associated asterisk symbols appear in small font on the front of the packaging.” [NB: I think only the asterisks appear on the front, according to the rest of the opinion and to the images.] On the back, “the protein content is reduced below the advertised amount appearing on the front of the packaging when the powders are mixed with water instead.” Wong brought the usual California statutory claims.

The court dismissed claims for injunctive relief, but not equitable relief under the FAL and UCL. The court accepted the idea that the pleading standard for seeking equitable relief is “minimal.” “[I]f a plaintiff pleads that she lacks an adequate legal remedy, Sonner will rarely (if ever) require more this early in the case.” Wong alleged that equitable relief is more “prompt and certain and in other ways efficient” than an award of damages, given that “equitable restitution can justify an award of greater relief than damages and is governed by a different standard of proof that allows the award of restitution even if a plaintiff cannot adduce evidence to support an award of damages.” That was enough.

Still, a reasonable consumer would not have been deceived, despite the large font size representation of the products’ protein content. The asterisk itself made the protein claim “ambiguous” to a reasonable consumer, which ambiguity could then be cleared up by reading the back label. “Even before reading the back label, the presence of an asterisk alone puts a consumer on notice that there are qualifications or caveats ….” This strikes me as a license to cheat.