In Affirming Dismissal, Ninth Circuit Warns That Consumer Surveys Require "Utmost Care"

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In Affirming Dismissal, Ninth Circuit Warns That Consumer Surveys Require "Utmost Care" Op. 1, No. 17

Replicating. Marketplace. Conditions. The consequences of failing to do so was on full display in a recent decision affirming the dismissal of a class action suit against The Procter & Gamble Company over a line of shampoo and conditioning products.?McGinity v. P&G, 2023 U.S. App. LEXIS 14436 (June 9, 2023). Here's what happened and what you need to know.

Plaintiff McGinity allegedly purchased (for a premium price) a couple of bottles of "Pantene Pro-V" shampoo and conditioning products. He did so thinking they were "natural" based on the prominent use of "Nature Fusion" coupled with a green leaf and avocado on the label:

It turned out that the products contained a number of synthetic substances, too. McGinity got worked up into a lather and filed a class action suit alleging violations of various California consumer protection statutes. In support of his allegations that the labels were misleading, McGinity attached a consumer survey to the amended complaint purportedly showing that nearly 50% of the respondents believed that the phrase "Nature Fusion" meant the products did?not?contain synthetic ingredients. McGinity's survey only showed respondents the front of the product and essentially argued the back label was irrelevant. Why? Because according to McGinity's argument (and Ninth Circuit precedent), information on the back of a product cannot be used to "clarify" a deceptive label on the front.

The Ninth Circuit rejected this argument. It held that the survey results did not in the first instance show the front was misleading. Instead, the results showed the phrase "Nature Fusion" was?ambiguous. As the Court noted, "[l]ooking only at the front label, survey respondents were split nearly 50/50 on the question of whether the products contain a mixture of natural and non-natural ingredients, or if they instead contain?all or substantially all natural ingredients."?McGinity?at 14-15. And, because the back contained both "natural" and "synthetic" ingredients, the back label would have provided more context to consumers as to whether the product as a whole was deceptive.

Accordingly, the Ninth Circuit held as follows:

Although a back label cannot contradict deceptive statements made on the front label, the back label can be used to interpret what is conveyed by the labeling when the front label is ambiguous, as here. With the entire product in hand, we conclude, no reasonable consumer would think that the products are either completely or substantially natural. The survey results do not make plausible the allegation that the phrase "Nature Fusion" is misleading.?McGinity?at 15.

The Takeaway. This decision is a good reminder about making sure the survey instrument and stimuli replicate the marketplace so that respondents have the necessary context. Despite the Court's conclusion, it did note how well-designed surveys can prove useful: "...[i]t is important that potential or current litigants draft questions for consumer surveys with utmost care. Although the particular survey proved noninformative in the context of this case and the results of the survey, consumer surveys may well be relevant and helpful in other cases."?McGinity?at 15. Lastly, for those that may be interested in reviewing the survey as attached to the amended complaint, it is set forth below, as is the Court's decision.