package claim that required users to double serving size and add ingredient was plausibly misleading despite disclaimer

Mencia-Montes v. Fit Foods Distrib., Inc., 2025 WL 1185372, No. 24-cv-01768-EKL (N.D. Cal. Mar. 31, 2025)

Courts in the 9^th Circuit have increasingly held, in consumer protection cases, that an asterisk puts the consumer on notice of important qualifications. But sometimes an advertiser goes too far with that; so here. Defendant’s protein supplement, “Mutant Mass Extreme 2500 Muscle Mass Gainer” says “92G PROTEIN†††” on the front of the package. A disclaimer on the bottom right-hand corner of the package reads” “†††Per 2 servings when taken as directed with milk.” The disclaimer in the bottom right-hand corner is even smaller font than the “PROTEIN†††” text.

front label with 92 gram representation

The back shows three columns of nutrition facts. The first column, “Per 1 serving with water,” reflects 30 grams of protein; the second column, “Per 2 servings with water,” reflects 60 grams of protein; and the third column, “Per 2 servings with 1% milk (31.8 fl. oz total),” reflects 92 grams of protein.

Mencia-Montez brought the usual California statutory claims.

The court found that it was plausible that reasonable consumers were likely to be deceived into thinking there were 92 grams of protein per serving, rather than 30.  “This type of statement is likely to deceive a reasonable consumer because it represents a seemingly concrete detail about the Product’s nutritional content.” What about that triple-dagger mark? Whether it was sufficient to put a reasonable consumer on notice was a fact question that couldn’t be resolved at this stage. First, plaintiff alleged that the reference mark is “barely legible, insufficiently offset by the much larger and prominent text that surrounds [it], and [is] lost within the various other symbols contained elsewhere on the Product’s label.” Second, the triple-dagger symbol wasn’t “an ‘asterisk’ but, rather a less familiar symbol, which evidently lacks a name in common parlance, and, at best, leads the consumer to a partial disclosure.” Third, Plaintiff the purported disclaimer itself was allegedly “buried on the bottom of the label, in small print and among other fine print language, and is completely separated from the at-issue ‘92G Protein’ claim such that it can easily be missed by a reasonable consumer.” (There was also at least one other “dagger” disclaimer on the front relating to protein, so the consumer would have to find the right one.)

Moreover, the disclaimer itself was plausibly misleading because it required consumers to both double the serving size and add an ingredient.  Then they’d have to figure out how much additional milk would be required (31.8 fluid oz).

However, plaintiff lacked standing to seek injunctive relief, which kicked out the CLRA claims entirely.