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.
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.