"dishwasher safe" wasn't too ambiguous to deceive where cutlery was top-rack only

Simpson v. Walgreen Co., --- F.Supp.3d ----, 2026 WL 413565, No. 23-cv-16465 (N.D. Ill. Feb. 13, 2026)

Simpson bought Walgreens’ Complete Home Heavy Duty (Complete Home) plastic cutlery. The front and back of the product were labeled “DISHWASHER SAFE” and “HEAVY DUTY” in all caps. The sides of the product were also labeled “HEAVY DUTY.” Simpson allegedly bought the product in part because she believed it was dishwasher safe, which means something different than “top-rack-only” dishwasher safe. “As it turns out, the bottom of the Complete Home box cautions: ‘DISHWASHER SAFE IF CLEANED ON THE TOP RACK.’” She didn’t turn the box over (a move likely to dump all the utensils out if the box has been opened already) and suffered the consequences. Simpson also alleged that “it is common practice in the plastic dish industry to clearly indicate when a product can only be washed safely on the top rack” and that the commonly used “dishwasher safe” symbols are distinct from the “top rack only” symbols. These labels are allegedly “particularly important for cutlery, because a dishwasher’s cutlery basket is ordinarily located on the bottom rack.”

front and bottom of box

She brought the usual California claims on behalf of a California subclass, as well as state law claims of common law fraud, unjust enrichment, intentional misrepresentation, and negligent misrepresentation.

The court refused to dismiss the claims because deception was plausible.

Walgreens argued that, under McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), when a label is merely ambiguous, it is not misleading, and a reasonable consumer would check the bottom of the box for more details. The packaging for the plastic cutlery, it argued, clarifies any potential ambiguity with term “dishwasher safe” by adding in all caps the statement “dishwasher safe if cleaned on the top rack.” Simpson responded that “disclosures that are not on the consumer-facing front label do not cure misleading front-label representation because a reasonable consumer is ‘not expected to look beyond misleading representations on the front of the box to discover the truth in fine print on the back label.’ ”

I’ve been thinking about the consumer protection concept of ambiguity that courts seem to be leaning into, and how it differs from Lanham Act ambiguity, and I think that the consumer protection concept is distinct (and probably wrongheaded) in folding materiality into the ambiguity inquiry. Here’s my current thesis, subject to revision:

In consumer protection cases, courts seem to be asking whether a substantial number of reasonable consumers could think that their questions were answered by the front matter, and thus not look further. By contrast, in Lanham Act cases courts find ambiguity when at least one reasonable interpretation is true, or nonactionable puffery. So, if courts frame the consumer protection concept as “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible,” there may not be much, if any, daylight between the two standards, and I think that’s the right treatment.

The difficulty is that the facts of Trader Joe’s, which the Ninth Circuit used to announce its consumer protection ambiguity standard, are so extreme about what “reasonable” consumers are supposed to know. It seemed that, in Trader Joe’s, the materiality of manuka honey’s supposed qualities was used to heighten the degree of care exercised by reasonable consumers. That is, if you care about it, you’re supposed to read more about it. But that move conflates epistemology (how do you learn what features a product promises?) with value. Thus, the reason the consumer protection version of ambiguity seems more stringent than the Lanham Act version is stealth importation of a heightened consumer care standard. One way for plaintiffs’ lawyers to proceed, it seems to me, is to specifically allege that, regardless of what we think a careful consumer should do, consumers who do care about product features often make judgments about those features based on the front label, because reasonable consumers don’t think about the details of everything they care about. That would be an exhausting and impossible way to move through the world! Alleging facts about standard practices, as the plaintiff did here, is one way to do make that conclusion more plausible.

The court agreed that McGinty didn’t apply because there, it was clear that the phrase “Nature Fusion” was ambiguous. But “dishwasher safe” was not ambiguous in the same way. Since McGinty, other 9^th Circuit cases have come closer to my proposed  “if one reasonable interpretation of the front matter is that the consumer’s questions were answered but that answer would be false, then deception is plausible” standard. E.g., Whiteside v. Kimberly Clark Corp., 108 F.4th 771 (9th Cir. 2024), found that “ ‘Plant-based” on the front of a package was plausibly misleading even though the back of their packaging disclosed the presence of synthetic ingredients.

“Plaintiff plausibly alleges that the front label of the Complete Home plastic cutlery is unambiguously deceptive to a reasonable consumer.” I wish the court hadn’t used the word “unambiguously” here, because that risks conflating “no reasonable consumer would think otherwise” with “a substantial number of reasonable consumers would receive this message,” and it’s the latter that sets the standard. Reasonable consumers can vary in the amount of thought they give to a given purchase, and that’s why we use the “substantial number” standard: so that we’re not only protecting the most careful subset of consumers.

Anyway, it was plausible that a reasonable consumer “would look at a box of ‘heavy duty’ plastic cutlery labeled as ‘dishwasher safe’ on the front and take it at its word.” Whether there was actual ambiguity was for later (again, worrisome language—the court cites the correct standard, which is whether there was deceptiveness).

[Other issues omitted, including the dismissal of claims for injunctive relief on standing grounds.]