Mislabeling

In our consumer-driven market, every purchasing decision presents a seemingly endless array of options. To stand out in a crowded marketplace, companies use eye-catching labels that extoll a product’s benefits and unique features.

Consumers rely on this labeling to compare products and make informed purchasing decisions. But sometimes, labels contain information or omissions that misrepresent the product in a way that is harmful to consumers.

Competition between businesses helps to keep prices low, quality high, and choices plentiful. But product mislabeling can skew consumer choice, causing shoppers to overpay or make purchases they might not otherwise have made. Mislabeling can also pose health and safety issues when manufacturers fail to disclose harmful product ingredients.

Milberg’s Mislabeling Practice Group

Milberg’s Mislabeling Practice Group works to combat falsely labeled products, promote fair competition, and protect consumers.

Our attorneys work with consumers to bring greater transparency—and accountability—to companies that sell falsely labeled goods by filing class actions that enforce the rules of fair play and bring real benefits to class members.

Our work in this area includes mislabeling lawsuits against Nutramax (Justin Lytle et al v. Nutramax Laboratories, Inc.), TTE Technology (Julian et al v. TTE Technology, Inc.), Rite Aid (Bailey v. Rite Aid Corp), and other major brands, including Keurig Dr. Pepper and Hershey’s.

Milberg pioneered federal class action litigation and has a proud history of standing up to corporate power, with thousands of class actions filed and billions of dollars recovered for our clients.

Mislabeling, Material Information, and the Reasonable Consumer

Mislabeling is a type of false advertising in which a product’s label contains material misrepresentations or omissions that are potentially harmful to “reasonable” consumers.

• Material fact, in the context of consumer purchases, is information that most consumers would find important when deciding whether to purchase a product
• Material misrepresentation relates to an affirmative claim about a product that is likely to affect a consumer’s choice
• Material omission occurs when information likely to be considered important by consumers is missing

When plaintiffs allege false labeling, courts in most states use the “reasonable consumer” test to determine if their claims can proceed. The “reasonable consumer” standard can be understood as the expectations and understandings of the typical buyer within a product’s target audience.

Companies are not responsible for every possible interpretation of their product label claims. But if a label represents a product in such a way that more than one interpretation is possible, and one of those interpretations is likely to be misinterpreted by a significant portion of the consuming public, that product could be considered mislabeled.

The standard of what constitutes a “reasonable” consumer is open to judicial interpretation based on the particular facts of each case and relevant case law. Courts may dismiss a case that argues an unreasonable or implausible theory about how consumers interpret product labels. But if a case passes the “reasonable consumer” test, consumers who purchased a mislabeled product may be eligible to recover monetary losses. The court may also order a company to correct a materially misleading label.

Examples of Mislabeled Products

Mislabeling lawsuits assert that products are not exactly what the manufacturer claims they are.

The deceptive descriptions that mislead consumers can take many forms, including:

• Using terms on food packaging such as “diet,” “light,” “natural,” or “organic”
• Advancing false claims about scientific support of a product or its endorsement by medical or scientific authorities
• Misleading photos or illustrations
• Falsely claiming a product is made with certain ingredients, or misrepresenting the amount of a stated product ingredient

Food and beverage products are among the most common targets of mislabeling class action lawsuits. More than half of Americans say that food labels are sometimes misleading.

Food and beverage mislabeling cases often deal with claims such as:

• Over or underreporting the amount of a nutrient or ingredient in a product (e.g., protein or sugar)
• The product was not made in the manner that the label suggests (e.g., food or drink labeled “smoked” derive their smoke flavor from chemicals, not from actual smoke)
• Referring to product ingredients as “real,” all-natural,” “100% natural,” “healthy,” “organic,” etc.
• Misstating the number of servings per container
• Failing to disclose a chemical substance in the product, such as the presence of per- and polyfluorinated substances (PFAS)
• Confusing messaging about a product’s country of origin

In addition to food and beverages, the following types of consumers products are frequently targeted in false labeling litigation:

• Health and beauty products
• Pet food and treats
• Home goods
• Nutritional supplements
• Clothing
• Footwear
• Sports equipment
• Household cleaners
• Over-the-counter drugs
• Pain relief products
• Legal marijuana products
• Appliances
• Electronics
• Products falsely labeled as “green,” “sustainable,” or “environmentally friendly” (i.e., “greenwashing”)

Notable Cases & Recent Recoveries

• Bailey v. Rite Aid Corp: Certified class action lawsuit that alleges Rite Aid sold “rapid-release” acetaminophen products for a premium price through, “false, misleading, unfair, deceptive labeling and marketing in an effort to dupe consumers into purchasing these gelcaps for prices that exceed their true value.”
• Nantucket Nectars PFAs: Class action lawsuit that alleges Nantucket Nectars-brand Orchard Apple beverages are “unfit for human consumption” because the plastic bottles they come in contain so-called “forever chemicals” shown to be harmful to human health.
• Hershey’s: Class action lawsuit that alleges Hershey’s marketing of certain dark chocolate products is false, deceptive, and misleading because it does not disclose the products’ high levels of lead and cadmium.
• I-Health, Inc.: Class action lawsuit that alleges dietary supplement manufacturer I-Health, Inc., the maker of Culturelle Ultimate Balance for Antibiotics probiotics, mislabeled and misrepresented the products because it makes claims that are not approved by the FDA.