Nothing Fishy About Expecting Consumers to Read the Ingredient List
Four years ago, in a widely covered decision, the Second Circuit held that the phrases “WHOLE GRAIN” and “MADE WITH WHOLE GRAIN” on the front of Cheez-It cracker boxes could plausibly deceive reasonable consumers into believing “that the grain in the product is predominantly, if not entirely, whole grain.” Mantikas v. Kellogg Company, 910 F.3d 633 (2d Cir. 2018). The panel was unpersuaded by Kellogg’s argument that the ingredient list on the side of the box, which listed “enriched white flour” as the top ingredient by weight, cured any misleading message conveyed by the front-box statements. In the panel’s view, reasonable consumers “should not be expected to look . . . [at] the ingredient list” to avoid misinterpreting language on the front of the box.
As we reported at the time, the panel’s holding was difficult to harmonize with the Second Circuit’s repeated admonition that, when considering whether product labeling is misleading, the label must be considered “as a whole, including disclaimers and qualifying language”—along with numerous decisions recognizing that ingredient lists do influence how reasonable consumers will interpret front-label claims. Since that time, district courts in the Second Circuit have sometimes struggled to articulate what Mantikas means for back-label disclosures, and when reasonable consumers can be expected to rely on them to interpret front-label statements.
A recent district court decision, Foster v. Whole Foods Market Group, Inc., No. 22-cv-01240-ERK-RML, 2023 WL 1766167 (E.D.N.Y. Feb. 3, 2023), sets forth one of the more cogent articulations of Mantikas’ limited scope.
In Foster, the plaintiff alleged that the defendant misled consumers about the Omega-3 content of their Fish Oil soft gels. Plaintiff argued that a reasonable consumer would understand “1000mg Per Serving” listed underneath “Omega-3s EPA& DHA” on the bottle’s front label to mean that the product contains 1000mg of these Omega-3s. However, the Supplement Facts located on the bottle’s back label disclosed that the product contained 1000mg of Fish Oil—and only 300mg of Omega-3s (i.e., 180mg of EPA and 120mg of DHA).
In considering the application of Mantikas, the court explained that while a back-label clarification “cannot correct an unambiguously misleading representation” on the front label, such “clarification can defeat a claim for deceptive packaging if a front label contains an ambiguous representation.” Id. at *3 (emphases added). At most, the “1000mg Per Serving” statement on the front label was ambiguous—and this ambiguity was “readily resolved by the information provided on the back label of the product,” which specified the “exact amount” of Omega-3s present. Id. at *2, *4. As the court summarized, “Mantikas is inapposite because here the statements on the Product’s front label, while ambiguous, are not false”—and thus, “the context provided on the Product’s back label . . . is sufficient to clarify any arguable ambiguity contained on the front label.” Id. at *4.
This interpretation of Mantikas as limited to cases where the front-label statement is “unambiguously misleading” is consistent both with pre-Mantikas case law in the Second Circuit, see, e.g., Nelson v. MillerCoors, LLC, 246 F. Supp. 3d 666 (E.D.N.Y. 2017), and with the better-reasoned decisions of sister Circuits. See, e.g., Moore v. Mars Petcare US, Inc., 966 F. 3d 1007 (9th Cir. 2020) (holding that “qualifiers in packaging . . . can ameliorate any tendency of the label to mislead” as long as the information confirms, rather than conflicts with the front label claims). It also accords with common sense: after all, FDA’s labeling regime for consumer goods presupposes that consumers will review nutrition facts, ingredient lists, and other key product information on side and back labels when purchasing and using products. So, while manufacturers cannot pull a bait-and-switch on consumers by claiming one thing on the front label and the opposite elsewhere on product packaging, Mantikas—as decisions like Foster explain—did not supplant the longstanding rule that side- and back-label disclosures inform how reasonable consumers interpret most front-label claims, including ambiguous claims that may be capable of more than one meaning.
 Omega-3 fatty acids are often referred to as “healthy fats,” and are often promoted as supporting heart health.