reasonable consumer isn’t required to interpret ingredient list for naturalness

Moore v. GlaxoSmithKline Consumer Healthcare Holdings (US)
LLC, No. 20-cv-09077-JSW,  2021 WL
3524047 (N.D. Cal. Aug. 6, 2021)

Moore alleged that GSK falsely labeled certain ChapStick
products with the claims “100% Natural,” “Natural,” “Naturally Sourced
Ingredients,” and “100% Naturally Sourced Ingredients.” The products allegedly contain
non-natural, synthetic, artificial, and/or highly processed ingredients. The
products are

100% Natural Lip Butter; Total Hydration 100% Natural Lip
Balm; Total Hydration Essential Oils Lip Balm; Total Hydration Moisture + Tint
Lip Balm; and Total Hydration Natural Lip Scrub, which come in a variety of
scents and shades, though Moore alleged that they were substantially similar,
identifying twelve allegedly non-natural (etc.) ingredients. Moore alleged that
she routinely the Total Hydration 100% Natural Lip Balm in Eucalyptus Mint and
Fresh Citrus scents and the Total Hydration Essential Oils Lip Balm in the
Happy scent, relying on the natural representations on the label. She alleged a
continued desire to purchase the products if they didn’t contain any
non-natural ingredients but was currently unable to rely on the truth of the
natural representations. She brought the usual California statutory claims, along
with breach of express warranty and unjust enrichment.

Based on these allegations, Moore had Article III standing
for products she didn’t buy, because the products and alleged
misrepresentations were substantially similar. Differences might impact class
certification or summary judgment, but they weren’t enough to defeat
substantial similarity for the purposes of standing. She also had standing to
seek injunctive relief. As with prior cases, desire to buy the properly labeled
product plus inability to rely on the truth of the packaging constituted a
cognizable risk of future harm. Moore alleged that as “an average consumer who
is not sophisticated in the chemistry, manufacturing, and formulation of
cosmetic products,” she would not be able to differentiate between cosmetic
ingredients that are natural and those that are synthetic. Thus, she alleged
that she was at risk of reasonably, but incorrectly, assuming that GSK fixed
the formulation. “[E]ven if Plaintiff is now aware of some synthetic
ingredients, it is plausible that she would still be unable to rely on the
Products’ labeling in the future given her allegations that she cannot
differentiate between synthetic and natural ingredients.” In any event, the
court didn’t think that she should be required to bear the burden of
scrutinizing the ingredient list to figure out if the products were really
natural.

Moore also adequately stated a claim under Rule 9(b). As to
misleadingness, she alleged a definition of natural and alleged that she
interpreted the natural representations as claims that the products contained
no non-natural, artificial, and/or synthetic ingredients. She also provided a
definition of “synthetic” and alleges how each challenged ingredient is
non-natural, synthetic, or artificial. Moore further plausibly pled deception
by reasonable consumers. Numerous courts in the Ninth Circuit have found it
plausible that a reasonable consumer could understand similar ‘natural’
statements, including ‘100% natural,’ ‘natural,’ and ‘naturally-sourced,’ to
mean that a product does not contain any non-natural ingredients.” Contrary
cases involved limited natural representations, such as “Made with 100% Natural
Moisturizers.”

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