False labeling litigation presents an ongoing challenge for consumer packaged goods companies, and the Ninth Circuit’s recent decision in Whiteside v. Kimberly Clark Corp., 108 F.4th 711 (9th Cir. 2024), has further complicated the issue. This ruling appears to significantly backtrack from recent precedent, muddying the waters and leaving companies in search of clarity.

In Williams v. Gerber Products Co., 552 F.3d 938 (9th Cir. 2008), the Ninth Circuit held that companies could not assert that clarifying information on the back labels of consumer products could be used to “cure” any potentially deceptive claims on the front label. However, McGinity v. Procter & Gamble Co., 69 F.4th 1093 (9th Cir. 2023), shifted this perspective, establishing that when a front label claim is ambiguous, consumers cannot claim that the representation on the front label is deceptive if it is clarified by information on the back label. This precedent led to the dismissal of numerous false labeling claims, as courts found that additional information on the back panel of a product label could effectively render front-label claims non-deceptive.

The Whiteside decision, issued in July 2024, appears to have backtracked significantly on McGinity’s holding. Although the defendant in Whiteside relied on McGinity for the proposition that “the front label must be unambiguously deceptive for a defendant to be precluded from insisting that the back label be considered together with the front label,” the Whiteside panel took a markedly different stance. It determined that if a front label claim is open to multiple interpretations (note the irony: this is the definition of “ambiguous”), the critical question is whether a reasonable consumer would require additional information to understand the representation. If so, the back label can provide context; if not, the manufacturer cannot rely on the back label to clarify the front panel claim.

In Whiteside, for example, the label at issue featured the phrase “plant-based” alongside images of plants. The court determined that a reasonable consumer could interpret this as meaning the product is entirely plant-based, without needing further information. However, the court also noted that, had the term “plant-based” been accompanied by an asterisk leading to more details, ambiguity would arise, allowing the back label to clarify the representation.  In so doing, the court did not expressly overrule McGinity (nor could it have, given the inability of one Ninth Circuit panel to overrule the decision of another), nor did the court declare that it was establishing a new bright-line rule.

So where does this leave consumer packaged goods companies? Companies must now navigate both Whiteside and McGinity in future litigation, which present two conflicting perspectives that, on their face, appear impossible to reconcile. On the one hand, McGinity holds that a company can rely on a back label for clarification of claims that are susceptible of multiple meanings; on the other hand, Whiteside appears to allow plaintiffs to sidestep McGinity if one of the multiple interpretations of a front-panel claim does not need further information to be understood. If a plaintiff can show that a “reasonable consumer” believes that one reading of the front label claim unambiguously conveys the product’s message, courts may now rely on Whiteside to rule that the back label cannot cure any alleged false misrepresentation, despite the fact that that is exactly what McGinity holds to be the case.

To mitigate risks, consumer packaged goods companies should adopt a proactive approach and understand that unqualified claims on a front panel might well subject them to false advertising litigation notwithstanding the inclusion of qualifying information on the back panel. To avoid potential lawsuits these companies can either fully disclose information on the front label or qualify their front label claims with an asterisk that directs consumers to additional details. If they choose not to do this, companies must be prepared for claims, and run the risk that a district court might decline to look at the back panel entirely.