"Target Clean" might certify specific qualities to reasonable consumers

Boyd v. Target Corp., --- F.Supp.3d ----, 2024 WL 4287669, No.23-CV-02668 (KMM/DJF) (D. Minn. Sept. 25, 2024)

This interesting lawsuit relies on Target’s curatorialreputation for the false advertising claim. Target is headquartered inMinnesota and plaintiffs sought to represent a putative nationwide class overcertain products labeled “Target Clean.” Target allegedly represents that thelabeled products are “clean” because they are “free from ‘commonly unwanted’chemicals or ingredients” and “ ‘formulated without ingredients [consumers] maynot want.’ ” The labeling is allegedly independent of manufacturer claims, and atleast some Target Clean products are not labeled or marked with a similar claimor description by the manufacturer.

Target allegedly uses a bright green hexagon within which isTarget’s typical “bullseye” logo and the word “clean.” Sometimes it’s onindividual shelf labels associated with particular products, and also on largerdisplay signs that offer a short explanation of the Target Clean programincluding a brief explanation of Target’s criteria, as well as on a website. Ithas identified 13 ingredients as being “banned” from Target Clean BeautyProducts. The complaint has details about the alleged harms of theseingredients; generally, they allegedly have “known impacts on human health andthe environment.”

Target allegedly designed and describes the Target Cleanprogram as a shopping assistant for health-conscious consumers. A Targetmerchandise executive allegedly described the program as “tak[ing] thecomplications out of finding better-for-you product options,” conveying to theconsumer that Target has done that work for them. However, plaintiffs allegedthat some products do contain the banned ingredients, and that others containingredients that are equally or more harmful to humans than the bannedingredients.

Plaintiffs alleged common law breach of warranty, expressand implied; common law fraud; negligent misrepresentation; violations of theMinnesota Consumer Fraud Act and Minnesota Uniform Deceptive Trade PracticesAct; and violations of Alabama, Arizona, California, Colorado, Florida,Illinois, Indiana, Michigan, New Hampshire, New York, Oklahoma, and Washingtonconsumer fraud and protection statutes (on behalf of putative statesubclasses).

Notes of interest: Target argued that exact purchase dates, notjust year and month, were required to plead fraud with particularity; the courtdisagreed:

While the Court can certainlyenvision a scenario in which specific-date allegations are key to providingnotice, this is not such a case. For one, the Court is unpersuaded thatindividual purchase dates are the relevant “when” in this matter, at all. Plaintiffsdo not allege discrete acts of deceit or fraud where Target’s purportedmisrepresentations were unique to individual purchases on different dates.Instead, Plaintiffs allege that Target Clean has induced sales throughmisleading claims throughout the program’s entire existence. The fact that thisallegation is broad does not mean that it fails to provide notice to Target asto “when” the fraud allegedly occurred. Moreover, as alleged in the Complaint,the period in which Target made its misrepresentations is not particularlylong. According to the Complaint, the Target Clean program was launched in 2019and continues to this day. This provides a “when” window of no more than fouryears at the time of the filing of the Complaint.

The real issue of interest is the reasonable consumerstandard. Although the court was somewhat dubious, the early stage of the caseallowed the claim to proceed. Certainly the allegation that at least oneproduct literally contained an ingredient on the banned ingredients list had tobe accepted.

The court was more sympathetic to Target’s arguments that“reasonable consumers would view Target’s posted definitions” to better informthemselves about what the program does and does not claim and that “clean”lacks any “accepted meaning [and] is too subjective and vague and whollydependent on an individual’s interpretation, and lacks an empirical benchmarkto provide any indicia of measurability to create a basis for a lawsuit ...based on reasonable consumer confusion.” But factual development was stillrequired. “Clean” was something of a moving target—plaintiffs alleged meaningsrelated to health; Target argued that Target Clean was a “proprietary” term andtherefore meaningless puffery, “embodying only its own exact terms andconditions and communicating nothing more.”

At this stage, the court would not resolve the issue inTarget’s favor. “Target’s own case law suggests that ‘clean’ is being used incosmetics sales widely, and has at least some kind of consistent meaning apartfrom whatever proprietary meaning Target wishes to assign to it.” Moreover, “Target’sdependence on an idealized scenario of clear explanation and disclosure aboutits own definition of Target Clean ignores Plaintiffs’ second-order assertionsabout the Target Clean program—namely, that the program’s definitions aboutitself are confusing and inconsistent.” Finally, “Target’s position requiresfar too much assumption about what a Target Clean consumer would havereasonably encountered or been told about this program at the time of theirpurchases.”

The court noted that the last point made this case “unique” comparedto other facially similar cases:

Many of the cases cited by Targetdismissing consumer fraud actions can be fairly characterized as “productcases,” meaning that a plaintiff has sued the manufacturer of a product for therepresentations made about (and often literally on) that product. In thisrelatively closed universe—featuring a directly proprietary representationabout a product, typically capable of being immediately verified or at leastscrutinized by the consumer—it makes more sense for a court to render earlylegal conclusions about who the reasonable consumer is and what they haveperceived. But the situation presented in this case is much murkier becausethis is not a typical products case. This is a case about a well-known nationalretailer alleged to have independently curated a selection of products and thenpresented those products to the consumer as being “Target Clean” through atleast several variations of representations. The central allegation presentedis that the Target Clean program itself is inherently deceptive, not merely anyone claim about any one product. In other words, by representing Target Cleanas a neutral tool to help consumers, Target is alleged to have used animprimatur of authority, as a retailer, to point health-conscious consumerstoward purchasing certain products.

Given this “broader Target marketing landscape,” plaintiffswere entitled to more expansive inferences about reasonable consumers. “[W]hileall of these positive representations about products communicate to theconsumer that someone would like to sell them something, only Target’srepresentation that a product is ‘Target Clean’ suggests that Target has donesome work on their behalf”:

The independent curation alsoeffectively removes another key basis on which consumer deception cases aredismissed under Rule 12: that a reasonable consumer understands the concept ofcommercial puffery and knows they must verify the claims made about products.This caveat emptor logic does not squarely apply here. It is one thing toassume that a consumer expects a shampoo manufacturer to promote its ownproducts by any means necessary, and therefore require that consumer, as amatter of law, to verify package labeling for abject dishonesty before claimingto have been deceived. But it is another thing to assume what a consumerreasonably expects when Target positions itself between the manufacturer’slabel and the consumer, promoting certain products on its shelves over othersas embodying certain standards. Here, the typical sales motivations arealtered, and indeed, at this stage the Court can imagine that a consumer mightreasonably assume that Target had independently made an assessment that some ofits products are cleaner than others in a way that is meaningful to its customers.What follows from such an assumption (e.g., whether a reasonable consumer wouldfeel that Target had relieved them of the need to verify claims or whether thereasonable consumer would view Target’s independent representations as being nomore trustworthy than those of the shampoo maker) remains opaque to the Court.But assuming as true Plaintiffs’ well-pleaded allegation that Target Cleanproducts are not actually “cleaner” than others, that opacity forecloses aquick dismissal on the merits of Plaintiffs’ fraud-based claims.

What about the next step in the chain of logic—that theTarget Clean program allows ingredients that are just as harmful as the “bannedingredients”? “Plaintiffs implicitly suggest that a reasonable consumer wouldunderstand the representation as identifying banned ingredients by kind ratherthan with literal specificity.” That is, that “propylparaben is a bannedingredient because it is a harmful endocrine disruptor, and not merely thatpropylparaben is a banned ingredient.” Target argued that “the list of bannedingredients speaks for itself and cannot impart any representation other thanits own, plain terms.” The court found this to be Target’s strongest argument,but not on a motion to dismiss. (FWIW, I think it’s an incredibly weak argument—thebasic rules of implicature suggest that these ingredients are banned for a reason,and the reason is that they’re bad for you; banning ingredients that are badfor you while allowing others that are just as bad for you for the very samereasons that the banned ones are bad for you is silly and counterintuitive.)

[T]he difference between therepresentations and expectations alleged in the Complaint is not one of applesand oranges. Furthermore, as discussed above, Target is alleged to have madestatements about the Target Clean program that arguably encourage broader expectationsthan Target is willing to concede can arise out of the fine print. Indeed,there is a fairly straight line between the alleged representation that TargetClean products are “formulated without a group of commonly unwanted chemicals” or“formulated without ingredients they may not want” and Plaintiffs’ assertionthat a reasonable consumer broadly expects Target Clean products to “be safeand good for humans.”

The court also found the reasonableness of plaintiffsposition strengthened by the reference to the FTC’s Guides for the Use ofEnvironmental Marketing Claims (Green Guides), which state that “a truthfulclaim that a product, package, or service is free of, or does not contain oruse, a substance may nevertheless be deceptive if: [ ] the product, package, orservice contains or uses substances that pose the same or similar environmentalrisks as the substance that is not present.”

I won’t mention most of the other claim-specific issues, butTarget sought to strike class allegations arising under Alabama’s DeceptiveTrade Practice’s Act (ADTPA) because of a limitation written into the statuteby the Alabama legislature that purports to ban the formation of class actions:

A consumer or other person bringingan action under this chapter may not bring an action on behalf of a class. Thelimitation in this subsection is a substantive limitation and allowing aconsumer or other person to bring a class action or other representative actionfor a violation of this chapter would abridge, enlarge, or modify thesubstantive rights created by this chapter.

But Rule 23 governs the formation of classes in federallitigation. Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559U.S. 393 (2010), as applied by the Eleventh Circuit to Alabama’s law, Lisk v.Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015), rejected theclaim that Alabama’s statutory ban on class action formation under the ADPTAimplicated any substantive right (against deceptive conduct) as a matter offederal law. “The State of Alabama may organize consumer lawsuits in its owncourts differently, but cannot impose those preferences on the federal courts. …[T]he nuanced analysis required under the Rules Enabling Act, as guided by ShadyGrove, does not hinge on whether a state simply says that a given law doesor does not implicate a substantive right.”]