Can The Ingredient List Defense Work? Look For Ambiguity, Invoke Common Sense

When faced with consumer litigation, food and beverage companies routinely point to the ingredient list in defense of front-of-package false advertising claims. The defense is essentially this: A false advertising claim based on the content of the product cannot exist where the ingredient list accurately discloses all ingredients. This defense is not always successful, particularly in a motion to dismiss context where the court finds that the packaging may be misleading or deceptive.

As the Ninth Circuit noted, reasonable consumers should not be "expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box." Williams v. Gerber Prod. Co., 552 F.3d 934, 939 (9th Cir. 2008). Likewise, a Missouri appellate court in 2016 rejected an ingredient list defense raised in a putative food labeling class action brought under the state's consumer fraud statute.

In those jurisdictions, the ingredient list won't shield a manufacturer from liability for actual deception. But some recent defense successes caution against abandoning the defense altogether.

For example, the ingredient list defense was successfully used to defeat a multi-state false advertising claim based on a package statement describing products as "100% Grated Parmesan Cheese." The court found that this phrase "might be interpreted as saying that the product is 100% cheese and nothing else" or it "might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated." In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 2017 WL 3642076, at *6 (N.D. Ill. Aug. 24, 2017).

The court ruled that a reasonable consumer, therefore, would "need more information before concluding that the labels promised only cheese and nothing more, and they would know exactly where to look to investigate the ingredient list." In other words, the challenged statement was...