asterisk alone makes front of package claims ambiguous

Wong v. Iovate Health Sciences U.S.A. Inc., 2025 WL 821451, No.2:24-cv-00901-DAD-CKD

(E.D. Cal. Mar. 14, 2025)

Is an asterisk on the front of a package aget-out-of-jail-free card for false advertising? If the disclosure doesn’tflatly contradict the claim, at least, maybe it is. (I would think thatevidence of what reasonable consumers thought they might learn from theasterisk is quite relevant for that—if they didn’t realize they needed toconsult the qualification, then they could still be deceived—but that’s notwhat this court holds, even though there are allegations that other marketplaceparticipants advertise differently and less deceptively.)

Wong bought “100% Mass Gainer,” a dietary supplement in theform of a protein powder, which stated that the supplement provided 60 grams ofprotein per serving. But, without adding milk, the supplement contained only 44grams of protein per serving rather than 60 grams. The rest of the product linealso has fewer grams of protein in a serving than what is stated on the frontlabel of the packaging because they all require the consumer to add somequantity of milk. “Other protein powders not produced by defendant havepackaging that prominently advertises the amount of protein contained within aserving of the powder, but only include the protein content from the powderitself.”

There’s a disclaimer that the protein content assumes theaddition of milk, “though those disclaimers and the associated asterisk symbolsappear in small font on the front of the packaging.” [NB: I think only theasterisks appear on the front, according to the rest of the opinion and to theimages.] On the back, “the protein content is reduced below the advertisedamount appearing on the front of the packaging when the powders are mixed withwater instead.” Wong brought the usualCalifornia statutory claims.

The court dismissed claims for injunctive relief, but notequitable relief under the FAL and UCL. The court accepted the idea that thepleading standard for seeking equitable relief is “minimal.” “[I]f a plaintiffpleads that she lacks an adequate legal remedy, Sonner will rarely (ifever) require more this early in the case.” Wong alleged that equitable reliefis more “prompt and certain and in other ways efficient” than an award ofdamages, given that “equitable restitution can justify an award of greaterrelief than damages and is governed by a different standard of proof thatallows the award of restitution even if a plaintiff cannot adduce evidence tosupport an award of damages.” That was enough.

Still, a reasonable consumer would not have been deceived,despite the large font size representation of the products’ protein content.The asterisk itself made the protein claim “ambiguous” to a reasonableconsumer, which ambiguity could then be cleared up by reading the back label. “Evenbefore reading the back label, the presence of an asterisk alone puts aconsumer on notice that there are qualifications or caveats ….” This strikes meas a license to cheat.